Re Resource Management and Planning Appeal Tribunal Act 1993, s27

[1999] TASSC 85

[1999] TASSC 85

CITATION:                 Resource Management and Planning Appeal Tribunal Act 1993, s27

Reference Pursuant to, Re [1999] TASSC 85

PARTIES:IN THE MATTER OF A REFERENCE PURSUANT TO THE RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL ACT 1993, s27 and IN THE MATTER OF THE ENVIRONMENTAL MANAGEMENT AND POLLUTION CONTROL ACT 1994, ss48 and 53.

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LDR M5/1999
DELIVERED ON:  13 August 1999
DELIVERED AT:  Hobart
HEARING DATES:  10 August 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

Administrative Law - Appeals from administrative authorities - Statutory appeals from administrative authorities to Courts - Appeal on question of law - "Unlawfully" - Whether defined as "without lawful justification" or "contrary to law".

Vallance v R (1961) 108 CLR 56; R v Vallance [1960] Tas SR 59, applied.
Dunlop v Woollahra Municipal Council [No 2] (1978 - 1981) 40 LGRA 218; Dunlop v Woollahra Municipal Council [No 2] (1981 - 1982) 33 ALR, 621; Beaudesert Shire Council v Smith (1966) 120 CLR 145, distinguished.
Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s27.
Environmental Management and Pollution Control Act 1994 (Tas), ss48 and 53.
Aust Dig Administrative Law [109]

REPRESENTATION:

Counsel:
      Applicants, D and K Draper:  In Person
      Respondents, T and J Rainbow:  In Person
      Launceston City Council:  S B McElwaine
      Director of Environmental Management:  H Virs
Solicitors:
      Applicants, D and K Draper:  In Person
      Respondents, T and J Rainbow:  In Person
      Launceston City Council  S B McElwaine
      Director of Environmental Management  Director of Public Prosecutions

Judgment Number:  [1999] TASSC 85
Number of Paragraphs:  16

Serial No 85/1999
File No

IN THE MATTER OF A REFERENCE PURSUANT TO THE RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL ACT 1993, s27 and IN THE MATTER OF THE ENVIRONMENTAL MANAGEMENT AND POLLUTION CONTROL ACT 1994, ss48 and 53

REASONS FOR JUDGMENT  WRIGHT J

13 August 1999

1. This is a reference to the Supreme Court of Tasmania of a question of law, pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s27. There has been an application to the Resource Management and Planning Appeal Tribunal ("the Tribunal"), pursuant to the Environmental Management and Pollution Control Act 1994 ("the Act"), s48 wherein the applicants, Dean and Karen Draper, allege that a heat pump installed by the respondents, Tony and June Rainbow, at their home in Norwood, Launceston, when operated, "unlawfully causes an environmental nuisance", contrary to the Act, s53(2).

1. The question of law referred by the Tribunal is as follows:

"Whether the word 'unlawfully' in section 53 of the Environmental Management and Pollution Control Act 1994 means 'without lawful justification' or 'contrary to law', in the sense of in breach of some law other than section 53 above, or has some other and if so what meaning."

The Act, s53(1) and (2) is in the following terms:

"53 ¾ (1) A person who wilfully and unlawfully causes an environmental nuisance is guilty of an offence.

Penalty:

Fine not exceeding 300 penalty units.

(2)  a person who unlawfully causes an environmental nuisance is guilty of an offence.

Penalty:

Fine not exceeding 100 penalty units."

1. Competing contentions have been advanced to the Tribunal as to the meaning of the phrase "unlawfully causes an environmental nuisance". On the one hand, it has been submitted that in the context of the Act, "unlawfully" simply refers to the creation of an environmental nuisance "without lawful justification". The contrary argument is that to be unlawful, the conduct complained of must be shown to be in breach of some specific requirement of the criminal or civil law. A corollary of this latter proposition is that an environmental nuisance is not, per se, "unlawful" in the necessary sense.

1. I heard argument in respect of this matter in Hobart on Tuesday 10 August 1999 and announced at the conclusion of the hearing that I entertained no doubt that in the context of s53, "unlawfully" means "unauthorised or unjustified by law", or "without lawful justification". The question raised by the Tribunal was, accordingly, answered in these terms. In deference to the importance attached to this question by the Tribunal, the applicants, the respondents, and the other parties joined pursuant to an order of the Tribunal, I said that I would publish written reasons for my decision.

1. It may be observed at the outset that an "environmental nuisance" means the emission of a pollutant that unreasonably interferes with, or is likely to unreasonably interfere with, a person's enjoyment of the environment, (see the Act, s3). A "pollutant" includes "noise … that may cause environmental harm", (see the Act, s3). The Act, s5, provides, in subs(1), that:

"(1)  For the purposes of this Act, environmental harm is any adverse effect on the environment (of whatever degree or duration) and includes an environmental nuisance."

As Mr McElwaine, on behalf of the Launceston City Council, correctly observed, these definitional provisions involve a certain circularity in their expression, but this does not render them ambiguous or incapable of sensible construction. 

1. It seems to me that the observations by Burbury CJ and Crisp J in R v Vallance [1960] Tas SR 51, have a direct bearing upon the issue currently under consideration. In that case, the Court was discussing the interpretation of the Tasmanian Criminal Code, s172, which provides:

"Any person who unlawfully wounds or causes grievous bodily harm to any person by any means whatever is guilty of a crime.

Charge:

Wounding [or causing grievous bodily harm]."

At 60, Burbury CJ said:

"The actus reus is complete once there is an unlawful wounding by any means, whether the means used be lawful or unlawful.  There is no requirement (as in the case of manslaughter) that the act causing the wounding be an unlawful act.

Lawful justification for the use of particular means causing a wound may in some circumstances be relevant to the question whether there is lawful justification for the wounding. But the quality of unlawfulness is by the definition of the crime attached to the fact of wounding and not to the means which causes it. It follows that the question whether the discharge of the gun constituted a breach of s 24 of the Police Offences Act 1935 or whether it was otherwise an unlawful act was not relevant to the charge of unlawful wounding. 'Unlawfully wounding' for the purposes of s 152 [sic]" [his Honour was obviously referring to s172]" of the Code in my opinion simply means 'wounding without lawful justification'.  'Unlawfully' in a similar statutory definition of the crime of unlawful wounding was so interpreted by Parry J in his summing-up reported in Reg v Charlson (1955) 39 Cr App R 37; [1955] 1 WLR 317 and by Sholl J in Reg v Spartels [1953] ALR 554 at 556.  In Cotterill v Penn [1936] 1 KB 53, the Court of Criminal Appeal gave consideration to the requisite mental elements in the following crime constituted by s 23 of the Larceny Act, 1861:

'Whosoever shall unlawfully and wilfully kill, wound, or take any house dove or pigeon under such circumstances as shall not amount to larceny at common law, shall, on conviction' [pay a penalty].

Lord Hewart CJ said:

'One contention on behalf of the respondent was that to sustain a charge under the section it is necessary to prove that the pigeon was killed or taken with felonious intent.  In my opinion, although the section says "unlawfully and wilfully", it does not require the element of mens rea beyond the point that the facts must show an intention on the part of the person accused to do the act forbidden, which was here that of shooting.  It seems to me to be immaterial that the bird which the respondent shot was of a different kind from that which he thought that he was shooting.  If the section had used the word "maliciously", the state of mind of the person charged would have been relevant.  But using the terms "unlawfully and wilfully" the section seems to me only to mean that the person accused intended to shoot and that the shooting was without a lawful excuse.' [1936] 1 KB 53 at pp 60-61

The italics are mine.

The word 'unlawfully' as used in the definition of the crime of 'unlawfully using any instrument or other means to procure a miscarriage' was interpreted by the Court of Criminal Appeal in R v Bourne [1939] 1 KB 687, as including legal justification for abortion as defined by the Infant Life (Preservation) Act, 1929.  Professor Glanville Williams on Criminal Law, The General Part, p 27 says:

'Yet another possible interpretation of "unlawfully" is that the word is surplusage, it merely indicates the existence of general defences in crime, such as infancy and insanity, which will in fact apply even if the word "unlawfully" is not in.  On this view, the word does not restrict the statutory definition of the actus reus.  An illustration is Bourne where the word was held to refer to the defence of necessity.'

An obvious example of legal justification for wounding is a necessary surgical operation performed in accordance with the conditions stated in s 51 of the Code.  The word 'unlawfully' is used in the same sense in a number of sections of the Code.  Sections 134, 175, 176 and 184 are other examples of crimes involving harm to the person which may be lawfully justified by a necessary surgical operation or by some other defence specified in ss 30-50 of the Code or at common law by virtue of s 8 of the CriminalCode Act 1924. The word 'unlawfully' is also used in the same sense of absence of lawful justification in relation to crimes involving harm to property (eg, ss 268 and 269)."

At 88 - 89, Crisp J made similar observations.  He said:

"A substantial argument addressed to us on s 170 [sic]" [his Honour was obviously referring to s172] "centred around the word, 'unlawfully.' It was suggested that the section might be read as if this adverb instead of both grammatically and logically qualifying the composite term 'wounds,' should be related to the act or conduct which produced the wound. The argument found expression in the summing-up:

'Under the second count of wounding, you have to be satisfied again that he fired the rifle, that as a consequence Pauline was wounded, that in firing the rifle the accused was acting unlawfully, and that in firing the rifle unlawfully his intention was to wound Pauline.'

Elsewhere in the summing-up the learned trial judge directed the jury with relation to s 24 of the Police Offences Act, 1935, which provides that: 'No person shall wantonly, or recklessly, or without due regard to the safety of other persons, discharge any firearm in any ... town' (or city).

This was equivalent to construing the section as if it reads: 'Any person who by any unlawful act wounds … etc', and of course introduced new complications both in the form of what mental element would be necessary to make the act unlawful and whether the act was committed in town or country.  With great respect, I am unable to read the section in this way.  The section in terms prohibits wounding 'by any means whatever,' not, 'by any unlawful act,' and to me the word 'unlawfully' qualifies not the act but the actus reus and in this context it does no more than mean something such as 'unauthorised or unjustified by law' (Cf R v Newman [1948] VR 61 at p 67). In the absence of some evidence of circumstances in the case suggesting legal justification (as for example in the hypothetical case I suggested during argument of wounding by surgical operation) it was not in my opinion necessary to direct the jury on the term 'unlawfully' at all, as no justification had at any time been suggested. On this score I would adopt the remarks of Professor Glanville Williams who puts the point I would wish to make.  See also Exshaw, 'Some Illustrations of the Application and Meaning of "Unlawful" in Criminal Law', 1959 Crim LR p 503."

(It is regrettable that the typographical errors noted in each judgment were not corrected before the printing of the report, but although there has been no formal correction made, it is plain enough that both judges were referring to s172.)

1. It will be seen that the very argument advanced by the respondents and the Launceston City Council in the present case, was considered and rejected by both learned judges in the remarks which have been reproduced above.  When Vallance went on appeal to the High Court (1961) 108 CLR 56, Kitto J at 63 made the following observations:

"The first step is to construe the expression 'any person who unlawfully wounds'. The presence of the word 'unlawfully' may be accounted for by the necessity of allowing for cases, such as those of surgical operations the performance of which is lawful as s 51 of the Code provides, in which the circumstances supply a legal justification for what is done.  (The trial judge was in error in telling the jury that the wounding of the girl was unlawful because the firing of a gun in the city was contrary to a provision of the Police Offences Act.)"

There is thus a strong body of opinion expressed by judges whose opinions command the greatest of respect, which supports the view that the word "unlawfully", used as it is in the Act, s63, has the meaning contended for by Mr Virs, who appeared on behalf of the Director of Environmental Management.

1. The parties promoting the opposite view placed reliance upon Dunlop v Woollahra Municipal Council [No 2] (Yeldham J) (1978 - 1981) 40 LGRA 218, and, on appeal to the Privy Council, [1980 - 1981] 33 ALR 621. In this case, both at first instance and on appeal, the word "unlawful" was construed as meaning "forbidden by law" but this construction was regarded as being necessary having regard to the way in which the word "unlawful" had been used and defined by the High Court in Beaudesert Shire Council v Smith (1966) 120 CLR 145. In a sense, the views expressed in the Beaudesert case are now of only historical interest as the decision was emphatically overruled by the High Court in Northern Territory v Mengel (1996) 185 CLR 307. In making that decision in 1996, the High Court had occasion to refer to the unsatisfactory nature of the definition of "unlawful" which had been adopted in Beaudesert, although I should add that such was not put forward by the Court as one of the reasons for overruling the earlier decision.  In Dunlop v Woollahra Municipal Council [No 2] (supra), Yeldham J said at 230:

"That the High Court" [in Beaudesert] "was, in using the expression 'unlawful', referring to something 'forbidden by law', in my opinion emerges from a passage ((1996) 120 CLR 145 at p 152) of the report where it is said that 'liability must depend upon the broad principle that the council intentionally did some positive act forbidden by law, which inevitably caused damage to Smith …' and also from the citation from Keeble v Hickeringill (1966) 120 CLR 145 at p 155 and the reference to Mogul Steamship Company v McGregor, Gow & Co (1889) 23 QBD 598. In the latter case Bowen LJ in the Court of Appeal (whose decision was upheld by the House of Lords [1892] AC 25 said at 619:

'Lastly, we are asked to hold the defendants' conference or association illegal, as being in restraint of trade.  The term "illegal" here is a misleading one.  Contracts, as they are called, in restraint of trade, are not, in my opinion, illegal in any sense, except that the law will not enforce them.  It does not prohibit the making of such contracts; it merely declines, after they have been made, to recognize their validity.'

See also per Bowen LJ at 614 and per Fry LJ at 626. In the House of Lords, in the same case, Lord Halsbury LC [1892] AC 25 at p 39 spoke of the more accurate use of the word 'unlawful' as being 'contrary to law'."

1. It should be noted that in Dunlop, the question before the Court was whether or not resolutions passed by the defendant council, being invalid, were "unlawful" within the Beaudesert principle.  Yeldham J held that they were not, and this decision was upheld by the Privy Council. 

1. It will be seen that the question before the Court, both in Beaudesert (supra) and Dunlop (supra), was very materially different from that which is before the Tribunal in respect of the Act, s53. I agree with Mr Virs who submitted that conformably with the reasoning of Burbury CJ in Vallance, an offence proscribed by the Act, s53(2) is complete once an environmental nuisance has been caused without lawful justification and there is no requirement or need to consider whether the act or omission causing the environmental nuisance is itself contrary to law. The Act defines environmental nuisance in terms which require the establishment of some degree of environmental harm and it seems to me that although broader in scope, an environmental nuisance would, in many circumstances, constitute either a private or public nuisance for the purpose of the law of torts. Thus, it seems to me to be self-evident that if the act complained of is tortious, the conduct complained of is, by definition, unlawful and thus "forbidden by law" in the relevant sense, but it is really unnecessary to pursue this line of thought, having regard to the conclusions which I have already reached.

1. Mr Virs, in his very helpful written submissions, presented a compelling argument that, contrary to Mr McElwaine's contentions, the structure and purpose of the Act is entirely consistent with the view that "unlawfully" in s53 means "without lawful justification". I can do no better than set forth the relevant part of his written argument:

"7   The long title describes it as 'An Act to provide for the management of the environment and the control of pollution in the State …'

8    The Act creates three offences with respect to the subject matter of causing environmental harm, viz 'Causing serious environmental harm' (Section 50), 'Causing material environmental harm' (Section 51), and 'Causing environmental nuisance' (Section 53).  The offences against Sections 50 and 51 are indictable offences (Section 52(1)) although proceedings in respect of those offences can in certain circumstances be heard and determined in a court of summary jurisdiction (Section 52(2)).

9 The expression 'environmental harm' is defined in Section 5(1) of the Act and includes an environmental nuisance. The expressions 'serious environmental harm' and 'material environmental harm' are respectively defined in Section 5(2) of the Act.

10 It is submitted that the offences of causing environmental nuisance created by Section 53 are lesser offences than those created by Section 50 or 51. Not only are the latter offences punishable on indictment, but the disparity in penalties specified in respect of each of these offences is indicative of the relative seriousness of each. Further support for this proposition is found in Section 5(2)(b)(i) of the Act which provides that environmental harm is to be treated as material environmental harm if 'it consists of an environmental nuisance of a high impact or on a wide scale.'

11 The scheme and provisions of the Act expressly contemplate circumstances in which acts or omissions, or certain continuing activities, which may cause environmental harm may nevertheless be lawfully permitted or authorized. Thus:

(a)Division 1 of Part 2 of the Act establishes the Board of Environmental Management and Pollution Control ('the Board') which forms part of the State's resource management and planning system (Section 12). The functions of the Board include:

(i) 'to ensure the prevention or control of any act or emission which causes or is capable of causing pollution' (Section 14(1)(c)); and

(ii) 'to co-ordinate all activities, whether governmental or otherwise, as are necessary to manage the use of, protect, restore or improve the environment of Tasmania' (Section 14(1)(d)).

(b)Division 1 of Part 3 of the Act confers on the Board the function of assessing under the Act in accordance with Environmental Impact Assessment Principles, where appropriate, certain activities in respect of which an application for a permit has been made to a planning authority, which activities may cause environmental harm. The Board may determine that such an assessment is not required where it is of the opinion that the activity in question will not result in serious environmental harm or material environmental harm. However, if an assessment is undertaken and completed, the Board must notify the planning authority of the results of the assessment and of any conditions or restrictions it requires to be contained in a permit granted in respect of such activity. A breach of any such condition or restriction of a permit constitutes an offence contrary to Section 63(3) of the Land Use Planning and Approvals Act 1993.

(c)There are also provisions in Division 1 of Part 3 of the Act with respect to assessment by the Board of activities which may result in environmental harm, but for which no permit is required (Section 27). If an assessment is undertaken and completed, the Board must serve on any person proposing to undertake the activity an environment protection notice containing such conditions or restrictions it requires to apply in respect of such activity. Contravention of a requirement of an environment protection notice constitutes an offence contrary to Section 45(3) of the Act.

(d)Division 5 of Part 3 of the Act provides for the issue by the Director of Environmental Management or an authorized officer of written authorization in respect of any act or omission that might otherwise constitute a contravention of the Act in cases of emergency or the need to protect life, the environment or property, and no criminal liability is incurred in respect of any such authorized act or omission (Section 34(2)).

(e)Division 7 of Part 3 of the Act confers on the Board power to approve an environmental improvement programme in respect of a particular activity for the purpose of achieving compliance with the Act for that activity by reducing environmental harm in cases of serious or material environmental harm. Section 42(1) of the Act provides that a person does not incur liability for prosecution in respect of any act or omission authorized by an environmental improvement programme. Contravention of a requirement contained in an environmental improvement programme constitutes an offence contrary to Section 42(2) of the Act.

(f)The combined operation of Sections 55(1) and 55(2) of the Act affords a defence to a charge of an offence against the Act that the act or omission alleged to constitute the offence was justified by the need to protect life, the environment or property in a situation of emergency, provided that the defendant was not guilty of any failure to take all reasonable and practicable measures to prevent or deal with such an emergency.

12 It is submitted that it is entirely consistent with the scheme and provisions of the Act that the adverb 'unlawfully,' meaning 'without lawful justification,' should appear in Section 53 and not be included in Section 50 or 51. Given the extremely broad definition of environmental harm contained in Section 5(1) of the Act, it is apparent that the acts or omissions that may answer the definition of environmental nuisance fall within a much broader range of everyday activity, both commercial and domestic, than that contemplated by the definitions of serious or material environmental harm. In these circumstances, it is appropriate that persons engaging in such activity should be afforded protection from criminal liability where the acts or omissions in question, although not relevant to the limited defences afforded by the Act in circumstances of emergency &c, are otherwise lawfully justified.

13 It is lastly noted that Section 52(4) of the Act provides that if a Court in proceedings for the offence of causing material environmental harm contrary to Section 51 is not satisfied that the defendant is guilty of that offence but is nevertheless satisfied that the defendant is guilty of the offence of causing an environmental nuisance, then it may find the defendant guilty of the offence contrary to Section 53. It is submitted that it would incongruous to suggest that in making the latter finding the Court should be satisfied that the defendant's acts or omissions must also amount to a breach of some law other than Section 53 when such a requirement or finding is not relevant to establishing the commission of an offence contrary to Section 51."

I need only record that I agree with each of these submissions.

1. It is noted that the Tribunal, in a determination titled R M & S J Towns v Pipers Brook Vineyard Ltd (1997) TASRMPAT 265, delivered on 13 December 1997, also reached the conclusion that the word "unlawfully" in s53 means "unauthorised or unjustified by law".

1. Once it is clear that the forbidden conduct is the creation of an environmental nuisance without lawful authority or excuse, it also becomes clear that in the absence of a justiciable issue arising at the trial of an alleged offender as to the existence or otherwise of such lawful justification, the prosecution will be entitled to succeed upon proof of the alleged offender's creation or continuation of such a nuisance.  It may provide useful guidance to the parties involved in the present dispute, particularly in view of some of the submissions made by Ms Rainbow, to observe that compliance with statutory or regulatory provisions limiting noise output from heat pumps or other sound sources, will not necessarily raise the relevant issue and even if proved, will not necessarily provide a defence to the offence charged.  This is because the primary question is whether or not an environmental nuisance has been caused by the operation of the pump or other device.

1. Merely because it has been shown that a general restriction upon noise levels in residential areas, imposed by statute or regulation, has not been exceeded, this does not, per se, establish that an environmental nuisance has not been created. The existence or otherwise of an environmental nuisance at any relevant time is a mixed question of law and fact. If a tribunal, properly seized of the question, has admissible and relevant evidence presented before it establishing circumstances upon which it could conclude that an environmental nuisance, as statutorily defined, has been created or continued by the offender, it will be entitled to find a complaint under s53(2) proved. The existence of standards and opinions of experts based thereon may provide useful material for such a tribunal to consider, but such evidence will not necessarily be determinative of the judgment to be made. The ultimate question will always be, do the established facts bring the case within the definition of an environmental nuisance, and, if so, has it also been shown that the alleged offender or offenders have no lawful justification for causing that nuisance?

1. It is inappropriate that I should express an opinion as to whether or not honest and reasonable mistake of fact could justify an acquittal.  This is not a clear cut issue (see Gibbon v Fitzmaurice [1986] Tas R 137). It goes without saying, of course, that the existence of a permit or authorisation lawfully issued by a responsible official allowing the creation or continuation of an environmental nuisance would defeat any prosecution.

1. Mr McElwaine attempted to argue that the proceedings in respect of which the present reference has arisen are fundamentally flawed and should not proceed, but as I pointed out at the hearing, any questions of this kind must be raised initially before the Tribunal for its consideration.