Re Town Planning Appeal Tribunal; ex parte Environmental Protection Authority - [2003] WASCA 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE TOWN PLANNING APPEAL TRIBUNAL; EX PARTE ENVIRONMENTAL PROTECTION AUTHORITY [2003] WASCA 248

CORAM: MALCOLM CJ
STEYTLER J
MCKECHNIE J

HEARD: 20 AUGUST 2003

DELIVERED : 14 OCTOBER 2003

FILE NO/S: CIV 1944 of 2003

MATTER :Application for a Writ of Prohibition and Stay of Proceedings against the Town Planning Appeal Tribunal constituted under the Town Planning and Development Act 1928

EX PARTE
ENVIRONMENTAL PROTECTION AUTHORITY
Applicant

Catchwords:

Environmental protection - Scheme for assessment - Whether power to prevent planning tribunal determining appeal

Legislation:

Environmental Protection Act 1986 (WA)

Town Planning and Development Act 1928 (WA)

Result:

Order nisi made absolute

Category: A

Representation:

Counsel:

Applicant: Mr G T W Tannin SC & Mr C S Bydder
Respondent: Mr W S Martin QC & Mr M C Hotchkin

Solicitors:

Applicant: State Crown Solicitor
Respondent: Hotchkin Hanly

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

Chandler v Director of Public Prosecutions [1962] 3 WLR 694
CIC Insurance Ltd v Bankstown Football Club Ltd (1995‑1997) 187 CLR 384
Coomber v Justices of Berks (1883) 9 App Cas 61
Corporation of City of Unley v State of South Australia (1996) 67 SASR 8
County Council of Middlesex v Assessment Committee of St George's Union [1896] 2 QB 143
Duperouzel v Cameron [1973] WAR 181
Electricity Trust (SA) v Linterns Ltd [1950] SASR 133
Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation (1918‑1919) 26 CLR 508
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gibb v Commissioner of Taxation (1966) 118 CLR 628
Gladstone Town Council v Gladstone Harbour Board [1964] Qd R 505
Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70
Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334
Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51
Launceston Corporation v Hydro‑Electric Commission (1959) 100 CLR 654
Low v Swan Cove Holdings Pty Ltd [2003] WASCA 115
Re Anti‑Cancer Council of Victoria; Ex parte State Public Services Federation (1992) 175 CLR 442
Re Honey Pool of Western Australia (1988) 6 ACLC 208
Richard Coomber v Justices of the County of Berks [1883‑84] 9 AC 61
State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639
Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330
Victoria v The Australian Building Construction Employees and Builders Labourers Federation (No 2) (1982) 152 CLR 179

Case(s) also cited:

Precision Data Holdings Ltd v Wills (1991) 173 CLR 167

MALCOLM CJ: This was the return of an order nisi made on 1 August 2003 that:
"1.The Town Planning Appeal Tribunal do show cause before the Full Court of this Honourable Court, why a Writ or Prohibition should not be issued out of this Honourable Court directed to the Town Planning Appeal Tribunal to prohibit the Town Planning Appeal Tribunal from determining Town Planning Appeal Tribunal Appeal No 32 of 2002 on the ground that the Town Planning Appeal Tribunal has no jurisdiction to determine the appeal, in that:
(a)the Town Planning Appeal Tribunal is constrained from making any decision which may have the effect of causing or allowing the proposal the subject of the appeal to be implemented until such time as a decision has been made that a proposal does not require assessment or until an authority has been served on the Town Planning Appeal Tribunal under section 41(2) of the Environmental Protection Act 1986;
(b)there is no valid decision from which the appeal could have been brought, because the decision was made contrary to section 41(2) of the Environmental Protection Act 1986.
2.The order nisi shall operate as a stay of any determination by the Town Planning Appeal Tribunal, otherwise than with the approval of the Environmental Protection Authority, of the proceedings in Town Planning Appeal Tribunal Appeal No 32 of 2002."
The background facts and circumstances leading to the making of the order nisi on 11 August 2003 are set out in the reasons for judgment of Steytler and McKechnie JJ. It is unnecessary for me to repeat them. In short, BGC (Australia) Pty Ltd ("BGC") applied to the local authority to extend the boundary of a quarry which it operated in the Shire of Northam. Before the Shire could make a decision on the application, the Environmental Protection Authority ("EPA"), acting pursuant to s 38(3) of the Environmental Protection Act 1986 ("the EP Act") by a letter dated 18 December 2001, required the Shire to refer BGC's proposal to the EPA. It was common ground that BGC's application was a "proposal" as defined in the EP Act. The Shire complied with the request. On 19 December 2001, the EPA decided to assess the proposal in accordance with s 40(1)(b)(ii) of the EP Act.
The result of these steps was that by s 41(2) of the EP Act, the Shire was precluded from making any decision which would have the effect of causing or allowing the proposal to be implemented until an authority was served on it under s 45(7) of the EP Act.
On 20 February 2002, BGC was informed by the Shire that it had refused planning approval for the proposal. BGC then appealed to the Town Planning Appeal Tribunal ("TPAT") against the refusal pursuant to s 47 of the Town Planning and Development Act 1928 ("the TPD Act").
By a letter dated 21 March 2003, the EPA notified the TPAT that it had decided to assess the proposal. The question which then arose was whether the TPAT, on an appeal by BGC against the refusal of the Shire was prevented by s 41(2) of the EP Act from making a decision which would reverse the decision of the Shire and which would cause or allow the proposal to be implemented, until it had been served with an authority under s 45(7) of the EP Act.
On 21 July 2003, the TPAT decided that s 41(2) of the EP Act did not apply to it, because it held that it was not a "decision‑making authority" within the meaning of that subsection.
I agree with both Steytler and McKechnie JJ, whose reasons I have had the benefit of reading in draft, that the TPAT is a "State instrumentality". I have reached that conclusion having particular regard to the reasons of Steytler J with which I am in entire agreement. I specifically agree with the comment by Steytler J that the Court could not assume a local council could be prevented by s 41(2) of the EP Act from making a decision which would permit a proposal to be implemented, notwithstanding that it was the subject of assessment by the EPA, but the TPAT was not also constrained from making such a decision on an appeal to it from the refusal of the Shire.
I also agree with Steytler J that the TPAT is a "decision‑making" authority "within the meaning of s 3(1) of the EP Act in that it is a "public authority" empowered by or under ... a written law ... to make a decision in respect of any proposal."
Unless the contrary intention appears, the term:

"public authority means Minister of the Crown acting in his official capacity, department of the Government, State agency or instrumentality, local government or other person, whether corporate or not, who or which under the authority of a written law administers or carries on for the benefit of the State, or any district or part thereof, a social service or public utility."

It was conceded by counsel for BGC that the words in the definition following the words "other person whether corporate or not" were confined in their application to the following words and had no application to the earlier categories including, in particular, an "instrumentality". The concession was correctly made for the reasons stated by Steytler J. The TPAT is a "State instrumentality" and hence within the definition of "public authority" for the purposes of s 41(2) of the Act. It follows that the TPAT was bound by s 41(2) not to make any decision that could have the effect which would cause or allow BGC's proposal to be implemented. Naturally, it could, having heard the appeal, make a decision dismissing the appeal.
I also agree with Steytler J that it would defeat the purposes of the EP Act if a local council could be prevented from allowing or causing a decision to be implemented, but no similar constraint was imposed on any appellate tribunal standing in the shoes of the local authority. Such a construction would defeat the important purposes of the EP Act.
In short, I agree entirely with the analysis of the relevant provisions in the respective Acts by Steytler J.
I agree with Steytler and McKechnie JJ that the order nisi should be made absolute, but that the terms of the writ should be limited to prohibiting the TPAT from making any decision in Appeal No 32 of 2002 which would have the effect of causing or allowing the proposal by BGC to be implemented until an authority is served on the TPAT under s 45(7) of the EP Act. Naturally, having heard the appeal, the TPAT is at liberty to make any decision that it sees fit which would not cause or allow the proposal by BGC to be implemented.
STEYTLER J: The background to this application is set out in the judgment of McKechnie J, which I have had the advantage of reading.
In a nutshell, BGC (Australia) Pty Ltd ("BGC") wished to extend the boundaries of its quarry in Northam. It sought the approval of the Shire of Northam ("the Shire"). On 18 December 2001, before the Shire could make a decision, the chairman of the applicant ("the EPA"), acting under

the power given to the EPA under s 38(3) of the Environmental Protection Act 1986 ("the EP Act"), required the Shire, by letter dated 18 December 2001, to refer the proposal to extend the quarry boundaries to the EPA (it is not in dispute that BGC's application was a "proposal" as defined in s 3 of the EP Act).

The effect of this requirement (which was satisfied by the Shire), coupled with the fact that the EPA decided, on 19 December 2001, to assess the proposal pursuant to the provisions of s 40(1)(b)(ii) of the EP Act, was that the Shire was, by virtue of s 41(2) of that Act, precluded from making any decision that could have the effect of causing or allowing the proposal to be implemented until an authority was served on it under s 45(7) of the Act. Section 41(2) reads as follows:
"(2)A decision‑making authority that -
(a)has referred a proposal to the Authority under, or in compliance with a requirement made under, section 38 or has been notified under subsection (1) that a proposal has been referred to the Authority under that section; or
(b)has been required under section 38(3) to refer a proposal to the Authority,
shall not make any decision that could have the effect of causing or allowing the proposal to be implemented until -
(c)it is informed under section 40(1)(a) that the Authority considers that the proposal should not be assessed by the Authority under this Part and the period within which an appeal against that decision may be lodged under section 100(1) has expired without the lodging of such an appeal or, if such an appeal has been lodged within that period, that appeal has been determined; or
(d) an authority is served on it under section 45(7)...".
Section 45(7) provides that:
"The Minister may, as soon as he is satisfied that there is no reason why a proposal in respect of which a statement has been published under subsection (5)(b) should not be implemented, cause to be served on the decision‑making authority precluded by section 41 from making any decision that could have the effect of causing or allowing that proposal to be implemented an authority in writing permitting such a decision to be made."
On 20 February 2002 the Shire informed BGC that it had decided to refuse planning approval for the proposal. It could do this because that decision could not, of course, have the effect of causing or allowing the proposal to be implemented. Rather, it prevented the proposal from being implemented. However, BGC appealed against that refusal, lodging an appeal with the Town Planning Appeal Tribunal ("the Tribunal") under s 47 of the Town Planning & Development Act 1928 ("the TPD Act").
By letter dated 21 March 2003 the EPA informed the Tribunal that it had decided to assess the proposal. An issue then arose whether the Tribunal was precluded by the provisions of s 41(2) of the EP Act from making a decision overturning that of the Shire, thereby having the effect of causing or allowing the proposal to be implemented (the absence of planning approval having been the only impediment to implementation of the proposal), until it had been served with an authority under s 45(7).
That issue was decided by the Tribunal on 21 July 2003. Its decision was that s 41(2) of the EP Act did not apply to it because it is not a "decision‑making authority" for the purposes of that section.
The term "decision‑making authority" is defined in s 3(1) of the EP Act. The definition, so far as it is relevant, provides that that term means, unless the contrary intention appears, "public authority empowered by or under … a written law … to make a decision in respect of any proposal …". The term "public authority" is also defined in s 3(1). Unless the contrary intention appears, that term means:
"Minister of the Crown acting in his official capacity, department of the Government, State agency or instrumentality, local government or other person, whether corporate or not, who or which under the authority of a written law administers or carries on for the benefit of the State, or any district or other part thereof, a social service or public utility."
The Tribunal, in its reasons for decision given by its President, ruled that it was not a "public authority" and therefore not a decision‑making authority. It did so primarily upon the basis that its role, in dealing with an appeal, is judicial and not administrative and that a body exercising judicial power does not carry on a social service or public utility for the benefit of the State, or any district or other part thereof. However, it was also influenced by the fact that there is, in s 2(1) of the TPD Act, a definition of "public authority" in terms similar (albeit not precisely so) to the EP Act definition and also a definition, under the former s 37 of the TPD Act (that section has since been repealed) of "Appeal Tribunal" (defined to mean "the Town Planning Appeal Tribunal constituted under section 42"). The President inferred from the fact that "Appeal Tribunal" was separately defined to "public authority" that the Tribunal was not intended to fall within the last‑mentioned definition.
The President consequently directed that the appeal should proceed to a hearing. That direction led to the bringing of an application by the EPA for the issue of a writ of prohibition, directed to the Tribunal, prohibiting it from determining the appeal. The application was supported on two grounds. The first was that the Tribunal was constrained from making any decision which may have the effect of causing or allowing the proposal the subject of the appeal to be implemented until such time as an authority had been served upon it under s 45(7) of the EP Act. The second ground, which was not pursued before us, was that there is no valid decision from which the appeal could have been brought, because the decision of the Shire was made contrary to s 41(2) of the EP Act.
The EPA succeeded in obtaining an order nisi in the terms sought and that order was directed to operate as a stay of any determination by the Tribunal, otherwise than with the approval of the EPA, of the proceedings in the appeal.
At the hearing before us, on the return of that order, BGC did not support the reasoning of the President of the Tribunal as a justification for the Tribunal's conclusion. That is because it concedes, rightly, in my respectful opinion, that the words, in the definition of "public authority" in the EP Act, "who or which under the authority of a written law administers or carries on for the benefit of the State, or any district or other part thereof, a social service or public utility" refer only to an "other person, whether corporate or not" and not to the remaining persons or entities specified in the definition, being a Minister of the Crown acting in his official capacity, a Department of the Government, a State agency or instrumentality and a local government. That, I think, follows from an ordinary reading of the definition. Moreover, were the position otherwise, the scope of the definition, and therefore that of "decision‑making authority", would be narrowed to a degree which could not have been intended, given the importance of the latter definition in various of the provisions of the Act and, in particular, in s 41 thereof. I should add that there appears to me to be no significance in the fact that there were, in the TPD Act, separate definitions of "public authority" and "Appeal Tribunal".
It is consequently unnecessary to analyse the reasoning of the Tribunal any further. The issue, as it was distilled before us, is whether the Tribunal is a "State … instrumentality" and hence within the definition of "public authority" in s 3(1) of the EP Act and, if so, whether it is a "decision‑making authority" for the purposes of the operation of s 41(2), upon the proper construction of that section read with the definition of that term in s 3(1). If it is, and if it is thereby caught by the provisions of s 41(2), it follows that it is constrained, until it receives an authority under s 45(7), from making any decision that could have the effect of causing or allowing BGC's proposal to be implemented, but not, of course, from making a decision which could not have that effect.
As to the first of those questions, it seems to me that the Tribunal is a State instrumentality.
In Re Anti‑Cancer Council of Victoria; Ex parte State Public Services Federation (1992) 175 CLR 442 the High Court was called upon to consider the meaning of that expression in an eligibility clause in the rules of an organisation of employees registered under the Industrial Relations Act 1988 (Cth) which provided that those eligible to be members included "Persons employed in the Public Service of Victoria or employed in any State instrumentality or other undertaking carried on by public authorities, commissions, or corporations under any State charter, statute, enactment, or proclamation of the State of Victoria". At page 448 of the report, Mason CJ and Brennan and Gaudron JJ said (citations omitted):
"It is well settled that union eligibility rules are to be interpreted liberally and according to their ordinary and popular meaning … . However, the expression 'State instrumentality' is one that carries much the same meaning in popular usage as in a legal context. That meaning directs attention to the purpose or end served, so that a body is a State instrumentality if it is empowered to and does, in fact, serve some State government purpose … . And that is so even if it is neither a servant nor an agent of the State …".
Their Honours referred, in support of the proposition expressed in the penultimate sentence of the extracted paragraph, to Electricity Trust (SA) v Linterns Ltd [1950] SASR 133 at 139 ‑ 140 (cited with approval in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 133) where Ligertwood J had said, of a section of the Landlord and Tenant (Control of Rents) Act 1942‑1949 (SA) to the effect that the provisions of that Act were not to apply to "any premises let by the Government of the State or any instrumentality of such Government", that:
"According to the Oxford English Dictionary, an instrumentality is that which serves or is employed for some purpose or end, a means, an agency. The [Electricity] Trust [of South Australia], in my opinion, exactly fits this conception. By virtue of s 15 of the Electricity Trust of South Australia Act, the Crown is the owner of the undertaking in the supply of electricity and the mining of coal in South Australia. The Trust serves the purposes of the Crown in managing the undertaking and in making electricity and coal available for the public. It exercises its functions on behalf of the Crown and is the means or agency for managing the Crown asset. It is not the servant or agent of the Crown because it has independent powers and is not subject to the control of the Governor in Council or any Minister of State. Nevertheless, it is an instrumentality or agency of the Crown, because it serves the purpose of the Crown in managing Crown assets in the interests of the public."

Mason CJ and Brennan and Gaudron JJ also referred, in support of that proposition, to Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation (1918‑1919) 26 CLR 508 ("the Municipal Employees' Case"). There the Court decided that municipal corporations established under State laws were not, with regard to the making, maintenance, control or lighting of public streets, instrumentalities of the State Government. Isaacs and Rich JJ, in considering what were proper government purposes or Crown functions, cited, with approval, the following extract from the judgment of Lord Watson in Coomber v Justices of Berks (1883) 9 App Cas 61 at 74:
"Seeing that, in my opinion, the administration of justice, the maintenance of order, and the repression of crime, are among the primary and inalienable functions of a constitutional Government, I have no hesitation in holding that Assize Courts and police stations have been erected for proper government purposes and uses, although the duty of providing and maintaining them has been cast upon county or other local authorities."
Their Honours referred, in support of the proposition contained in the final sentence of the paragraph extracted from their judgment in Anti‑Cancer Council, to the Municipal Employees case and to Launceston Corporation v Hydro‑Electric Commission (1959) 100 CLR 654 at 662 ‑ 663, where Dixon CJ, Fullagar, Menzies and Windeyer JJ appear to have approved what was said by Ligertwood J in Electricity Trust (SA) to the effect that the description "instrumentality" was wider than "servant or agent".
Counsel for BGC contended that, because the Tribunal is not subject to control by the executive arm of government, and functions independently, it should not be regarded as a "State instrumentality". He relied, in that respect, firstly upon the case of Corporation of City of Unley v State of South Australia (1996) 67 SASR 8, in which the Court was required to determine whether a health centre ("the Centre") incorporated under s 48 of the South Australian Health Commission Act 1976 (SA) was a "State agency", which term was defined to include "an agency or instrumentality of the Crown", within the meaning of s 49 of the Development Act 1993 (SA). If it was, the Development Assessment Commission of South Australia could consent to a development which it proposed to undertake. If it was not, an application for consent would have to be made to the plaintiff. In fact, the Centre applied to the Development Assessment Commission for consent and the plaintiff commenced proceedings claiming a declaration that the Centre was not a State agency. Debelle J held that the Centre was not an agent or instrumentality of the Crown within the meaning of the Development Act and said, at 15, in the course of arriving at that conclusion, that, in determining that question, an "important element of that task will be to examine the extent of control exercised by executive government over the Centre".
Next, the respondent referred to Gladstone Town Council v Gladstone Harbour Board [1964] Qd R 505. There, the question was whether the Gladstone Harbour Board represented the Crown and was consequently entitled to the immunities of the Crown. The Court held that it did not. In arriving at that conclusion, Mansfield CJ took into account that, while some of the Harbour Board's functions were subject to the control of the Governor in Council and the Minister, other important discretionary powers and duties were not. Gibbs J, at 521, said that the question whether the Harbour Board was an agency of the Crown depended on all the circumstances of the case, but particularly on the extent to which the defendant could exercise its powers independently of the control of the executive government. His Honour referred to what had been said by the High Court in Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 at 75 ‑ 76 and 81 and Launceston Corporation v Hydro‑Electric Commission at 660 ‑ 661 in support of the proposition that, although a Board may exercise public functions and may be subject to Ministerial control in many respects, it does not necessarily follow that it is the servant of the Crown because it may still appear that, in performing its functions, the Board exercises an independent discretion, limited though it may be by the powers of the Crown.
Finally, in this respect, the respondent referred to the cases of State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639, Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 and Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334. In Inglis, the issue before the Court was whether the Commonwealth Trading Bank of Australia, which was the defendant in civil proceedings arising out of its banking business, was "the Commonwealth or a person … being sued on behalf of the Commonwealth". It was held, by a majority, that, under the statutory scheme pursuant to which the bank was set up, the bank was an instrument by which, together with the Commonwealth Savings Bank and the Commonwealth Development Bank, the Commonwealth participated in the business of banking and that, when sued as the emanation by which the Commonwealth operated in the field of banking, the matter fell within s 75(iii) of the Constitution. In the State Bank of New South Wales case a similar question arose, being whether, for the purposes of s 38(d) of the Judiciary Act 1903 (Cth) (which invests exclusive jurisdiction in the High Court in respect of "suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth") the State Bank of New South Wales, being a corporation through which that State carried on banking, was a State. The Court held that it was. In the third case, Superannuation Investment Trust, one of the questions before the Court was whether the Trust was the Crown in right of the Commonwealth. The Court answered that question in the affirmative. In each of these cases the measure of control by the Crown over the entity concerned was regarded as a material factor in answering the questions which respectively fell for decision.
All of these cases are, in my opinion, readily distinguishable from this case. The question whether a particular entity is or is not the Commonwealth or a State agency or State instrumentality must, necessarily, be one of legislative intention, having regard for the statute or statutes under consideration. So, for example, in considering whether or not a particular bank is or is not an emanation of the Commonwealth for the purposes of a particular legislative provision, or whether a superannuation fund investment trust is the Crown in right of the Commonwealth for the purposes of another, the question of Commonwealth control may loom large, but that says little in the context of an entirely different provision such as that under consideration in this case. As, indeed, Debelle J recognised in Corporation of City of Unley, at 15, it is always necessary to ascertain the legislative intent in the particular enactment, having regard for all such indicia as might be relevant. Moreover, it is well established that a body may be a State instrumentality even if it is neither a servant nor an agent of the State: see the extract quoted above from the judgment of the High Court in Anti‑Cancer Council of Victoria, above, at 448, and Electricity Trust (SA), above, at 139.
Consequently, while it is true that the Tribunal is independent, and not subject to the control of the executive government, at least in respect of the determinations which it makes, that, of itself, need not mean that it is not a "State instrumentality" in accordance with the popular usage of that term, being an instrumentality which is empowered to and does, in fact, serve some State Government purpose: Anti‑Cancer Council of Victoria, above, at 448.
As was pointed out by counsel for the applicant, one of the purposes of the State's executive government is that of regulating land use through the administration of various planning statutes and the development of planning policy. Much of this work is entrusted, at first instance, to such entities as local governments, which are often required to deal with applications for planning approval (as happened in this case). The Tribunal, in hearing an appeal against the refusal of such an application, effectively stands, for that purpose, in the shoes of the primary decision‑maker. It would be odd, to my way of thinking, to assume that the legislature had intended that a local council should be constrained by the provisions of s 41(2) from making a decision that could have the effect of causing or allowing a proposal to be implemented, notwithstanding that the proposal was to be the subject of an assessment by the EPA, but that no similar constraint was intended to be imposed upon an appellate body, standing in its shoes for the purpose of making that decision.
Counsel for BGC sought to overcome this difficulty by contending that the Tribunal, as an appellate body, is subject to other constraints which do not apply to the first instance body, simply because of its nature as an appellate body. Also, and more importantly, he contended, the Tribunal is required to take environmental issues into consideration. He referred, in this last respect, to s 60 and s 62 of the TPD Act. The first of those sections provides that, before determining an appeal from a decision under s 48I of the EP Act, or a decision relating to an environmental condition, the Tribunal is required to invite the Minister for the Environment to make a submission in respect of that appeal. The latter section provides that the Tribunal may receive or hear submissions from a person who is not a party to an appeal in respect of the appeal if it is of the opinion that that person has a sufficient interest in the appeal.
I am not persuaded that these sections are such as to render it unnecessary to subject the Tribunal to the constraint imposed by s 41(2). Section 60 requires the Tribunal to invite a submission from the Minister only in the very limited circumstances to which it refers and, under s 62 (which is plainly not directed only to environmental issues), the Tribunal has merely a discretion to hear submissions from a person interested. It is difficult to think that the legislature could have contemplated that these limited provisions, or anything arising from the nature of the Tribunal as an appellate body, or both, were such as to justify what might amount to the complete bypassing of the comprehensive and careful assessment regime provided for by the EP Act and placed in the hands of a specialist body for the purposes of the protection of the environment. As has been mentioned by McKechnie J, the Minister for the Environment, in his second reading speech in respect of the then Environment Protection Bill, said, on 24 July 1986:
"Decision‑making authorities like Government departments, for example, cannot make final decisions which would have the effect of allowing referred proposals to be implemented until environmental conditions, where appropriate, have been set and the Minister so advises. However, decision‑making authorities are not prevented under these measures from beginning negotiations with relevant parties at all levels as if the proposal were to proceed, other than to make that final decision. The ultimate decision to proceed with a project can only follow receipt of the report of the EPA and the agreed conditions. The conditions have to be complied with."
Next, counsel for BGC submitted that s 42(2) of the TPD Act, prior to its repeal in 2002, provided strong evidence that the legislature did not consider that the Tribunal could be an instrumentality of the Crown. That section provided, inter alia, that no person "employed in a full‑time capacity by an agency or instrumentality of the Crown" could be a member of the Tribunal. It was submitted that it must follow that the Tribunal itself could not have been regarded by the legislature as an instrumentality of the Crown. I am unable to accept this contention. Even leaving aside the fact that the provision relied upon appears in the TPD Act and not the EP Act, it seems to me that the effect of the section is no more than that any person who is, at the time of seeking appointment as a Tribunal member, a full‑time employee of any agency or instrumentality of the Crown is ineligible for appointment and that a member cannot remain so if he or she takes up full‑time employment with any other body, if it is a Crown agency or instrumentality. The section appears to me to say nothing at all as regards the question whether the Tribunal is, itself, an instrumentality of the Crown.
Finally, in this respect, counsel for BGC submitted that the legislature should not be taken to have intended to include the Tribunal (and the Supreme Court, to which an appeal lies on a question of law from the Tribunal) within the definition of "decision‑making authority", thereby making it subject to the direction of the EPA. However, I do not consider that that is the effect of s 41(2) of the EP Act, being the section relied upon by counsel for the respondent in this respect. Leaving to one side the question whether the Supreme Court is a State instrumentality for the purposes of the definition of "public authority" in s 3(1) (and I agree with McKechnie J that it is unnecessary to decide that question in this application), all that s 41(2) does is to require a decision‑making authority to defer any decision that could have the effect of causing or allowing a proposal to be implemented until one or other of the events there specified has happened. I am not at all persuaded that, in circumstances in which the sole purpose of that requirement is to facilitate, first, the prospect of an environmental assessment by a specialist body, there is anything in the provision which should render it abhorrent as an undue interference with the independence, in this case, of the Tribunal. The effect of the provision is merely that of putting on hold a determination by that body until other legislative prerequisites have been satisfied.
It follows from all of this that, as I have earlier said, I am satisfied that the Tribunal is a "State … instrumentality" for the purposes of the definition of "public authority" in s 3(1) of the EP Act and that it is, consequently, a "public authority" as defined. It follows, in turn, that the Tribunal is a "decision‑making authority" as defined in s 3(1) because it is undoubtedly empowered by or under a written law (the TPD Act) to make a decision in respect of any "proposal" (defined, in s 3(1), to mean, relevantly, "project, plan, programme, policy, operation, undertaking or development or change in land use, or amendment of any of the foregoing …"). The only remaining question is consequently that of whether or not the contrary intention appears in s 41(2).
I do not think that it does.
In considering what was intended to be the reach of that section, it is important to consider the scheme of the EP Act.
Under s 38 of the Act, a proposal that appears likely, if implemented, to have a significant effect on the environment must, subject to the exceptions provided for, be referred to the EPA by a decision‑making authority as soon as the proposal comes to its notice and may be referred to the EPA by the proponent, or, where the proposal is not one under an assessed scheme, by any other person. Provision is also made, in s 38(2) and s 38(3), for the referring of a proposal to the EPA by the Minister or, in a case in which the EPA itself considers that a proposal is likely, if implemented, to have a significant effect on the environment, for the EPA itself to require a decision‑making authority or proponent to refer the proposal to it (as happened in this case). Under s 39, the EPA is required to keep a public record of each proposal referred to it under s 38.
By virtue of s 40(1), when a proposal is referred to the EPA under s 38, it must consider whether or not to assess the proposal and must then give notice accordingly. Under s 40(2) the EPA is given various powers for the purpose of assessing a proposal. By s 100(1) any decision‑making authority, responsible authority, proponent or other person which or who disagrees with the decision of the EPA that a proposal should not be assessed by it or, inter alia, with the level of assessment of a proposal, is given a right of appeal to the Minister. Under s 41(1), the EPA, if it considers that the proposal should be assessed, is required to notify any relevant decision‑making authority that the proposal has been referred to it. Under s 41(2), the terms of which have been recited above, a decision‑making authority that has referred a proposal to the EPA, or been notified of the referral to the EPA of a proposal, is prohibited from making any decision that could have the effect of causing or allowing the proposal to be implemented until informed by the EPA that the proposal is not to be assessed by it and until the period within which an appeal against the decision may be lodged under s 100(1) has expired, without any such appeal being lodged, or until such time as the appeal has been determined or an authority has been served on it under s 45(7). Under s 43(1) of the EP Act the Minister is given various powers, including the power to direct the EPA to assess a proposal or to assess or re‑assess it more fully or more publicly or both.
Where the EPA does assess or re‑assess a proposal it is required, by s 44(1), to prepare a report on the environmental factors relevant to the proposal and on the conditions and procedures, if any, to which any implementation of that proposal should be subject and it is empowered to make such recommendations in the report as it sees fit. Publication of the report is provided for by s 44(3). Section 45 then provides for a consultation process between the Minister and decision‑making authorities with a view to reaching agreement on whether or not the proposal to which the report relates may be implemented and, if so, on what conditions and subject to what procedures. If agreement cannot be reached, the Minister is required by s 45(3) to appoint an appeals committee to consider and report to him on the matter or matters in dispute. Where agreement is reached or a decision made that a proposal may be implemented and on the conditions and procedures, if any, to which that implementation should be subject, the Minister is required, by s 45(5), to notify the persons specified in that subsection, including the decision‑making authority or authorities consulted by him under s 45(1), accordingly.
Section 100(2) gives to any responsible authority, decision‑making authority, proponent or other person which or who disagrees with the content of, or any recommendations in, the report a right of appeal. Section 100(3) gives a similar right to any proponent which or who disagrees with any of the conditions or procedures agreed or decided upon under s 45. Section 45(6)(a) provides that, if an appeal is lodged under s 100(2) in respect of a report published under s 44(3), the proposal to which that report relates shall not be implemented while the appeal is pending or otherwise than in accordance with the decision made on the appeal. Section 45(6)(b) provides that where, under s 100(3), an appeal is lodged in respect of any conditions or procedures agreed or decided upon under s 45, the proposal shall not be implemented while the appeal is pending or subject to any conditions or procedures which are not in accordance with the decision made on the appeal. However, s 45(6) does not provide for a stay in the case of an appeal under s 100(1) which, as I have said, encompasses an appeal against a decision of the EPA that a proposal should not be assessed by it, perhaps because s 41(2)(c) assumes that, in such a case, there will still be a decision‑making authority which will be prevented from making any decision that could have the effect of causing or allowing the proposal to be implemented until one of the events there referred to has occurred.

Next, as will already be apparent, under s 45(7) the Minister may, as soon as he is satisfied that there is no reason why a proposal in respect of which a statement has been published under s 45(5)(b) should not be implemented, cause to be served on the decision‑making authority precluded by s 41 from making any decision that could have the effect of causing or allowing that proposal to be implemented an authority in writing permitting such a decision to be made. If an agreement is reached or a decision is made under s 45 that a proposal may not be implemented, the Minister is required, by s 45(8), forthwith to notify the persons specified in s 45(5), including the decision‑making authority or authorities consulted by him and the proponent of the proposal, in writing accordingly.
Section 46 provides for the amendment of conditions and procedures in a case in which the Minister, if he or she considers that any conditions or procedures agreed or decided upon under s 45 should be changed, requests the EPA to inquire into and report to him or her whether or not those conditions or procedures should be changed. By s 46(6), notwithstanding anything in s 46, a proposed change to any conditions or procedures agreed or decided upon under s 45 shall, if the Minister and any decision‑making authority consulted by him or her under that section agree that that change is a major change, be deemed to be a new proposal and shall be referred by that decision‑making authority to the EPA under s 38(1).
Under s 47(1), a proponent upon whom a statement has been served under s 45(5), and who does not ensure that any implementation of the proposal to which that statement relates is carried out in accordance with any conditions and procedures set out in the statement, commits an offence. By s 47(2), such a proponent may be required to give to the Chief Executive Officer reports and information in respect of the implementation of the proposal and of any of the specified conditions and procedures.
Finally, s 48 provides for the monitoring of the implementation of any proposal, insofar as that implementation is subject to any conditions or procedures, for the purpose of determining whether or not those conditions or procedures have been or are being complied with.
It is apparent from this scheme that nowhere is there any direct prohibition against the implementation of a proposal that has been referred to the EPA, other than by means of the mechanism provided for by s 41(2) and that provided for by s 45(6) which, as I have said, does not deal with the situation where the appeal is against a decision of the EPA that a proposal shall not be assessed, presumably because it was thought that s 41(2)(c) of the Act would cope with that situation.
It follows, of course, that the only safeguard against a proposal being implemented before the assessment process has been completed is provided by s 41 of the EP Act. Given the importance of that section's role, it would frustrate the objects of the EP Act to construe the term "decision‑making authority" narrowly. That being so, it seems to me that, far from any contrary intention appearing, the ordinary meaning of the definition is intended to be given effect in that section.
However, counsel for BGC, in his usual persuasive way, sought to persuade us, by reference to a number of other provisions of the EP Act which referred either to a "public authority" or to a "decision‑making authority", that, in those provisions, it was apparent that the Tribunal could not have been intended to be comprehended within the expression concerned. He submitted that, if that is so, then a general intention might be gleaned from the provisions of the EP Act that dispute resolution bodies, such as the Tribunal, were never intended to fall within the definition for any purpose and that the terms "public authority" and "decision‑making authority" were intended to have a consistent meaning throughout the Act.
His review commenced with the provisions of s 18, s 19 and s 20, which deal with the delegation of powers and duties respectively by the Minister, EPA and Chief Executive Officer to various persons, including, in each case, "a public authority". Self‑evidently, the legislature could not have contemplated a delegation of powers or duties of the kind in question to the Tribunal. However, that says nothing as to the meaning of "public authority". Each of the sections to which I have referred provide, also, for delegation to "any other person". It seems to me to be quite plain that, in each case, it was assumed that delegation would be made only to an appropriate "public authority" or "other person". The Tribunal is merely one of many public authorities and other persons to whom it would, quite plainly, be inappropriate to delegate the powers or duties in question.
Next, we were referred to s 26 of the EP Act, which provides for the preparation and publication by the EPA of draft environmental protection policies. Section 26(e) requires the EPA to make reasonable endeavours to consult, in respect of any draft environmental protection policy, such public authorities and persons as appear to it to be likely to be affected by that draft. Once again, this seems to me to have little bearing on the question whether the Tribunal is or is not intended to fall within the definition of "public authority". It seems to me that there would be no need to consult the Tribunal, even if it is a public authority, in respect of a draft policy. While it may be obliged to have regard for an environmental protection policy, once promulgated, that does not make it a body likely to be affected by a draft policy for any relevant purpose, let alone to the extent of requiring to be consulted by the EPA in respect thereof. The same comments apply to s 30 of the EP Act, which provide for consultation by the Minister of public authorities and persons likely to be affected by draft environmental protection policies. Similar comments also apply to s 32, which deals with the reconsideration of remitted draft environmental protection policies and the resubmission thereof to the Minister.
Next, we were referred to s 38(1)(a) which, as will already be apparent, provides, inter alia, that a proposal that appears likely, if implemented, to have a significant effect on the environment shall be referred in writing to the EPA by a decision‑making authority as soon as the proposal comes to the notice of that authority. It was suggested that the decision‑making authorities there referred to could not have been intended to include the Tribunal. I am not persuaded that that is so. I can see no reason why the Tribunal should not be required to refer a proposal, which comes to its attention in the course of an appeal, to the EPA if, in its opinion, it is likely, if implemented, to have a significant effect on the environment and if that proposal has not previously been drawn to the attention of the EPA. Similarly, I am unable to see why it should not have been intended that the EPA might require the Tribunal, as a decision‑making authority, to refer a proposal of that kind to it. I should add that I would imagine that it will only rarely be necessary for the Tribunal either to refer a proposal to the EPA or for the EPA to require it to do so, as, in the vast majority of cases, a proposal of that kind will have come to the attention of the EPA prior to its consideration by the Tribunal, given that the Tribunal is an appellate body.
Section 38(6) and s 38(7) require the Minister, in cases of the kind there referred to, to give written notice, inter alia, to "any relevant decision‑making authority" of the nomination, or revocation of the nomination of, the person responsible for each proposal which the EPA considers should be assessed by it. Counsel for BGC submitted that it could hardly have been intended that notice should be given to the Tribunal in such a case. That may be true. However, it seems to me that the Tribunal, while a "decision‑making authority", is not a "relevant decision‑making authority" for the purposes specified. Similar comments apply to s 40, which provides for notification to "any relevant decision‑making authority" of a decision to assess a proposal, or not to assess it, as the case may be.
Next, we were referred to s 44(3), which requires the Minister, after receiving copies of a report given to him under s 44(1) (in respect of the environmental factors relevant to a proposal and the conditions and procedures, if any, to which any implementation of that proposal should be subject), to cause copies of that report to be given to, inter alia, each decision‑making authority by which the proposal to which that report relates was referred to the EPA or which had been notified under s 41(1) that the proposal had been referred to the EPA. However, I can see no reason why such a report should not have been intended to be provided to the Tribunal in the relatively rare case in which it was the referring authority or in which it had been notified that the proposal had been referred to the EPA.
That brings me to s 45 of the EP Act, the provisions of which constituted the cornerstone of BGC's arguments in this context. As will already be apparent (I have earlier referred to many of the provisions of s 45), s 45(1) requires the Minister, after he or she has caused a report to be published under s 44(3), to consult with, inter alia, any decision‑making authority to whom a copy of the report has been given under that section and, if possible, agree with it on whether or not the proposal to which the report relates may be implemented and, if so, upon what conditions and procedures. I have earlier mentioned that s 45(3) provides that, if the Minister and the decision‑making authority cannot agree on the matters in question, the Minister is to appoint an appeals committee to consider and report to him or her on the matter or matters in dispute. There are then various provisions which deal with the procedural aspects of the consideration of that matter or those matters by the appeals committee. By s 45(5), if agreement is reached or a decision is made under s 45 that a proposal may be implemented and on the conditions and procedures, if any, to which it should be subject, the Minister is required to cause copies of a statement indicating that the proposal may be implemented, and setting out those conditions and procedures, if any, to be served on, inter alia, the decision‑making authority or authorities consulted by him or her under s 45(1).
It seems to me that, in the context in which the term "decision‑making authority" appears in these provisions, that term does not comprehend the Tribunal. It could not sensibly be thought that the Tribunal was intended to be consulted by the Minister in the respects specified or that it should, in any way, be party to the appeal processes to which I have referred. That being so, BGC contends, the expression "decision‑making authority" in s 45(7) cannot be taken to include the Tribunal, with the consequence that it cannot be served with an authority under that section for the purposes of s 41(2). That, the respondent submits, follows from the fact that such an authority can only be served after a statement has been published under s 45(5), which assumes that an agreement has been reached or a decision made under the section.
I am not persuaded by this submission. While it is true that the publication of a statement under s 45(5) assumes the reaching of an agreement, or the making of a decision (perhaps after following an appeal process) under s 45, there is no requirement that the decision‑making authority referred to in s 45(7) (the provisions of which have been quoted earlier in these reasons) should have been involved in any of the processes provided for by s 45. That being so, the fact that the Tribunal is not a decision‑making authority for the purposes of the earlier subsections of s 45 does not mean that it is not a decision‑making authority for the purposes of s 45(7). In my opinion, this is a situation in which "the contrary intention appears" in those earlier subsections but not in s 45(7).
Next, we were referred to s 48(2) of the EP Act which, as I have earlier said, gives to a decision‑making authority power to monitor or cause to be monitored the implementation of any proposal, insofar as the implementation is subject to any conditions or procedures. However, that is merely an empowering provision and, if the Tribunal is a decision‑making authority for that purpose (and this may be a case where the contrary intention appears), there is no obligation upon it to take advantage of that provision.
Finally, as to s 100(2), to which we were also referred and which, as I have mentioned, gives to any responsible authority, decision‑making authority, proponent or other person which or who disagrees with the content of, or any recommendations in, a report prepared, inter alia, in respect of a proposal under s 44 the right to lodge an appeal with the Minister, it seems to me that this, too, is a case in which the contrary intention appears.

There is consequently nothing, in this necessarily lengthy review of the provisions to which we have been referred, which would cause me to alter the opinion which I have expressed in respect of the application of s 41(2). I should add, before leaving this topic, that, like McKechnie J, I am in entire agreement with what was said by Burt J (as he then was) in Duperouzel v Cameron [1973] WAR 181 at 182 ‑ 183, as follows:
"As by the Act the defined expression is to carry that meaning 'unless a contrary or other intention appears' the possibility always exists that an intention that it should bear a different meaning may appear, and should it appear, the definition must be departed from so as to accommodate that intention. But the contrary or other intention must, or so it seems to me, be found within the particular context in which the defined word appears, and when found, the definition is then departed from for the purposes of that particular provision only. It cannot be right to search through the Act to find a number of provisions not including the relevant provision in which the intention to depart from the definition appears and having found them, then to say that the contrary intention appears for all the purposes of the Act and hence for the purposes of the relevant provision."
It follows, from these conclusions, that the order nisi should be made absolute. However, I agree with McKechnie J that the terms of the writ of prohibition which should issue should be limited to one prohibiting the Tribunal from making any decision, in Appeal number 32 of 2002, that could have the effect of causing or allowing the proposal advanced by BGC to be implemented, until an authority is served on it under s 45(7) of the EP Act. Having already heard the appeal, it could, of course, make any decision which did not have that effect, should it see fit to do so.
MCKECHNIE J:

Introduction

This is the return of an order nisi directing the Town Planning Appeal Tribunal to show cause why a writ of prohibition should not be issued to prohibit it from determining Town Planning Appeal Tribunal Appeal No 32 of 2002 on the ground that the Town Planning Appeal Tribunal had no jurisdiction to determine the appeal. The applicant is the Environmental Protection Authority ("EPA"). BGC (Australia) Pty Ltd ("BGC"), the appellant before the Town Planning Tribunal, opposes the application.

Although two grounds are advanced in the order nisi counsel on behalf of the applicant effectively abandoned the second ground and I shall say nothing further about it.
The ground advanced is as follows:
"(a)the Town Planning Appeal Tribunal is constrained from making any decision which may have the effect of causing or allowing the proposal the subject of the appeal to be implemented until such time as a decision has been made that a proposal does not require assessment or until an authority has been served on the Town Planning Appeal Tribunal under section 41(2) of the Environmental Protection Act 1986."

Background to application

The background giving rise to the application is not in issue. BGC operates the Voyager Quarry on land licensed by BGC from the owner of Lot 7 Horton Road, Northam and has done so since 1990. The quarry provides granite for the manufacture of concrete, road base, and other building products. The quarry mines approximately one million tonnes of granite per annum. It is located in the Shire of Northam on the Great Southern Highway approximately 47 kms south‑west of Northam, 16 kms east of Mundaring and 46 kms west of York.
On 22 November 2001, BGC sought approval from the Shire of Northam to extend the existing Voyager Quarry on Lot 7 west into Lot 14, which, with Lots 14 and 11, is owned by BGC. BGC submitted a Quarry Development and Management Plan with its application. BGC wishes to expand its operations to ensure a continuous supply of crushed granite rock to current and future markets for the next 30 to 50 years, the existing quarry only containing sufficient economically feasible resources to operate for another six years.
On 18 December 2001, the Chairman of the EPA required the Shire of Northam to refer the proposal to the EPA: Environmental Protection Act s 38(3). On 19 December 2001 the Shire duly referred the matter. On the same date the EPA decided to assess the proposal.
On 20 February 2002 the Shire of Northam informed BGC that "… Council will not grant planning approval for an extractive industry on lot 14" and that "the request from BGC to operate a quarry on this location [loc 1881 Lot 14] is therefore refused".
On 22 March 2002 BGC lodged an appeal with the Town Planning Appeal Tribunal against that refusal.
On 21 March 2003, the EPA wrote to the Town Planning Appeal Tribunal as follows:
"Please be advised that the Environmental Protection Authority is currently assessing the proposal by BGC (Australia) Pty Ltd for 'Land Clearing and Quarry Expansion, Lot 14 Horton Road, The Lakes' under Part IV of the Environmental Protection Act 1986. The assessment is at the level of Public Environmental Review (PER), and the 8‑week public review period for the PER closed on the 3 March 2003."
On 21 July 2003 the President of the Town Planning Appeal Tribunal ruled that the role being discharged by the Tribunal is in the nature of judicial power and that the Environmental Protection Act did not preclude the Tribunal from proceeding to hear and determine the appeal.
Between 11 to 14 August the Tribunal heard the application, but by order of Justice Roberts‑Smith, on 8 August 2003, is stayed from making any determination pending resolution of the order nisi.

The issue which arises

The issue in this application involves the construction of relevant sections of the Environmental Protection Act 1986 and is simply stated: Does s 41(2) of the Environmental Protection Act prevent the Town Planning Appeal Tribunal making a decision unless and until the Minister authorises it to do so?

Relevant statutory provisions

Although it is necessary to have regard to a number of sections in the Environmental Protection Act, the following sections are critical:

Section 3 - Interpretation

"(1)In this Act, unless the contrary intention appears -
…
'decision-making authority' means public authority empowered by or under -
(a)a written law; or
(b)any agreement -
(i)to which the State is a party; and
(ii)which is ratified or approved by an Act,

to make a decision in respect of any proposal and, in Division 2 of Part IV, includes, in relation to a particular proposal, any Minister prescribed for the purposes of this definition as being the Minister responsible for that proposal;
…
'public authority' means Minister of the Crown acting in his official capacity, department of the Government, State agency or instrumentality, local government or other person, whether corporate or not, who or which under the authority of a written law administers or carries on for the benefit of the State, or any district or other part thereof, a social service or public utility;"

Section 41(2)

"(2)A decision-making authority that -
(a)has referred a proposal to the Authority under, or in compliance with a requirement made under, section 38 or has been notified under subsection (1) that a proposal has been referred to the Authority under that section; or
(b)has been required under section 38(3) to refer a proposal to the Authority,

shall not make any decision that could have the effect of causing or allowing the proposal to be implemented until -
(c)it is informed under section 40(1)(a) that the Authority considers that the proposal should not be assessed by the Authority under this Part and the period within which an appeal against that decision may be lodged under section 100(1) has expired without the lodging of such an appeal or, if such an appeal has been lodged within that period, that appeal has been determined; or
(d)an authority is served on it under section 45(7),

as the case requires."

Refinement of the issue which arises

The central issue may be refined into a series of questions:
(1)Is the Town Planning Appeal Tribunal "a State instrumentality"?
(2)If it is, is it empowered by or under a written law to make a decision in respect of any proposal, being any project, plan, program, policy, operation, undertaking or development or change in land use?
If the answer to these two questions is yes, then, by s 41 of the Environmental Protection Act, the Town Planning Appeal Tribunal must await the decision of the EPA unless there is a contrary intention evinced in s 41. If the answer to either or both questions is no, then the following questions arise:
(3)Is a contrary intention as to the definition of "decision-making authority" disclosed in s 41 of the Environmental Protection Act ?
(4)In any event, does the contrary intention indicate whether the Town Planning Appeal Tribunal is or is not a "decision‑making authority"?
In the resolution of these questions, reference to decided cases is of little assistance and the principal quest must be to construe the Environmental Protection Act in a manner which best promotes its purpose.

The Town Planning Appeal Tribunal is a State instrumentality and therefore a "public authority"

I read the definition of "public authority" in s 3 disjunctively. So read, it is not necessary for a State instrumentality to be also one which, under the authority of a written law, administers or carries on for the benefit of the State, a social service or public utility. This is accepted by counsel for BGC.
The word "State" is capitalised and must refer to the State of Western Australia established in 1901 under the Constitution: covering cl 6 and Chapter V. The Town Planning Appeal Tribunal is established by Act of the Parliament of Western Australia. Members are appointed by the Governor and remuneration is fixed by the Salaries and Allowances Act 1975 or by the Minister for Planning. The costs of the Town Planning Appeal Tribunal are met from consolidated revenue.
In Re Anti‑Cancer Council of Victoria; Ex parte State Public Services Federation (1992) 175 CLR 442, the High Court said at 448:
"However, the expression 'State instrumentality' is one that carries much the same meaning in popular usage as in a legal context. That meaning directs attention to the purpose or end served, so that a body is a State instrumentality if it is empowered to and does, in fact, serve some State government purpose. And that is so even if it is neither a servant nor an agent of the State."
This definition is similar to that adopted by Ligertwood J in Electricity Trust (SA) v Linterns Ltd [1950] SASR 133 at 139 ‑ 140 and approved by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Ligertwood J held:
"The Trust, in my opinion, exactly fits this conception. By virtue of s 15 of the Electricity Trust of South Australia Act, the Crown is the owner of the undertaking for the supply of electricity and the mining of coal in South Australia. The Trust serves the purposes of the crown in managing the undertaking and in making electricity and coal available for the public. It exercises its functions on behalf of the crown and is the means or agency for managing the Crown asset. It is not the servant or agent of the Crown because it has independent powers and is not subject to the control of the Governor in Council or any Minister of State. Nevertheless, it is an instrumentality or agency of the Crown, because it serves the purpose of the Crown in managing Crown assets in the interest of the public."
The expression "State instrumentality" was imported into Australian jurisprudence from the constitutional law of the United States of America, not from the common law of the United Kingdom: Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation (1918‑1919) 26 CLR 508 ("the Municipalities case") per Isaacs and Rich JJ at 526. Although perhaps not firmly established in 1919, the term is now firmly embedded and understood. In 1950, Ligertwood J arrived at a definition of "State instrumentality" by reference to the "Oxford English Dictionary": Electricity Trust of South Australia v Linterns Ltd. A similar result can be obtained in 2003 by reference to the "Macquarie Dictionary"; but dictionary definitions do not advance the issue. I am content to rest on the definition in Re Anti‑Cancer Council that a body is a State instrumentality if it is empowered to and does, in fact, serve some State government purpose.
I consider the reference to "State government purpose" to be a wide reference to government, not a narrow reference confining State instrumentalities to bodies somehow under the control of the Executive government of the day.
It is this wide purpose to which Isaacs and Rich JJ referred in the Municipalities case at 526:
"A clear distinction must be noted and preserved between the expression 'the Government of the country' in the sense of the King's representatives or agents in the concrete sense, and the expression 'the government of the country' in the abstract sense of the process of governing the country in whole or in part. The first denotes the persons who act, and the second denotes acts done. Again, the functions performed by 'the Government' in the concrete sense, including in that term those who represent the Government pro hac vice, are the acts of the General Government, that is, theoretically, the Crown; but there may be functions coming under the second head which are not in any real sense acts of the General Government."
It is the sense of the wider purpose to which I think Lord Reid was referring in Chandler v Director of Public Prosecutions [1962] 3 WLR 694 at 705 in the context of the Official Secrets Act in the safety or interests of the State. He said:
"'State' is not an easy word. It does not mean the Government or the Executive. 'L'Etat c'est moi' was a shrewd remark, but can hardly have been intended as a definition even in the France of the time. And I do not think that it means, as counsel argued, the individuals who inhabit these islands. The statute cannot be referring to the interests of all those individuals because they may differ and the interests of the majority are not necessarily the same as the interests of the State. Again we have seen only too clearly in some other countries what can happen if you personify and almost deify the State. Perhaps the country or the realm are as good synonyms as one can find and I would be prepared to accept the organised community as coming as near to a definition as one can get."
This view fits comfortably with "the State" as the organised community of the people of Western Australia legally entitled "the State of Western Australia".
The issue of government purposes arose in 19th Century England in a series of rating cases which are referred to in the Municipalities case. It is sufficient for present purposes to refer to just two of them.
Richard Coomber v Justices of the County of Berks [1883‑84] 9 AC 61 concerned the rating of a building used for the administration of justice and for police purposes. Parts of the building were also used for holding county and committee meetings and various other occasional purposes.
Lord Blackburn said at 69:
"I do not say that the Assize courts, maintained by the county for the administration of the Queen's justice and the Queen's court are quite so clearly occupied by the servants of the Crown as those courts which are maintained by the woods and forest out of the general revenue of the country. Nor do I say that the police station, maintained by the county for the maintenance of the police, is quite so clearly occupied by the servants of the Crown as a barrack maintained for soldiers, and paid for out of the general revenues of the country. But I think there is great reason for saying that both are maintained for the purposes of the administration, or those purposes of the government which are, according to the theory of the Constitution, administered by the Sovereign."
In County Council of Middlesex v Assessment Committeeof St George's Union [1896] 2 QB 143, another rating case involving premises occupied by the Court of Sessions of a county and the county council, Justice Cave said at 146:
"The decisions of recent years, beginning with the Mersey Docks cases, have taken a very different view of the rateability of property used for public purposes from that which was formerly taken, and a distinction has been drawn between Crown or Imperial purposes, such as the administration of justice, and purposes of local government."
The same view was followed by Wills J.
These authorities were relied upon by Isaacs and Rich JJ to support the conclusion which I have set out above.
Higgins J in the Municipalities case analysed American authority and noted at 540:
"But whatever may be the history of the doctrine [of immunity of State instrumentalities], it appears that the tendency of recent decisions is to draw a sharp line between the ordinary activities of a municipality and the activities of a strictly governmental character - such as the judiciary, the administration, the Legislature of the State."
Using the words "State instrumentality" in the wider sense, it is clear the Town Planning Appeal Tribunal is such a body. It is part of the administration of the State and, in particular, is part of the general administration of the planning and developing of land for urban, suburban and rural purposes. The fact that the Town Planning Appeal Tribunal has an independence of decision‑making does not affect its general character. No doubt control by the Executive is an indicia of a body being a State instrumentality but it is not decisive. The cases to which reference has been made concern trading bodies - the Electricity Board of South Australia; local authorities - the Corporation of Melbourne; a health promotion and research body - the Anti-Cancer Council, a voluntary marketing scheme - The Honey Pool of Western Australia (Re Honey Pool of Western Australia (1988) 6 ACLC 208).
These are bodies from which, as the decisions illustrate, real questions can arise as to whether their functions and statutory framework require the conclusion that they are State instrumentalities; that is organs forming part of the government of the State.
On the wider view, which I favour, and consistently with the view espoused in the cases to which I have earlier made reference, a court is a State instrumentality. A court exercises the judicial power of the State and may exercise that power freely and independently without interference or intervention by the Executive or Parliament. Nevertheless, courts are an instrument of government of the organised community, essential for the maintenance of law and order and the administration of justice within that community. They are funded by the State and are, in Montesquieu terms, the third arm of government although not a kritarchy.
If a court is an instrument of the State, then the Town Planning Appeal Tribunal must be regarded even more as such an instrumentality, sitting as it does within the general scheme of town planning, a scheme which applies throughout the whole of the geographic area of the State of Western Australia for the benefit of all.

A note about Courts

I interpose to mention a matter raised in the course of argument. If the Supreme Court, from which an appeal on a question of law lies from the Town Planning Appeal Tribunal, is a State instrumentality, then the question is posed: Is the court also subject to direction under s 41? It is not necessary to answer that question and it is preferable that no answer be attempted. Constitutional questions involving the grant of Federal judicial power on a State court may prevent the State Parliament acting in a manner inconsistent with that grant of power by purporting to control or limit the exercise of that power: Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51. It is of the essence of judicial power that the court exercising it shall give a decision which is binding and authoritative. It is not an exercise of judicial power to make a recommendation which the Minister may ignore if the Minister follows the procedures set out in the Environmental Protection Act s 45: Victoria v The Australian Building Construction Employees and Builders Labourers Federation (No 2) (1982) 152 CLR 179 per Gibbs CJ at 183. It may be that these cases are sufficient authority to suggest that the contrary intention is shown in s 41 in relation to defining "decision‑making authority" as including the Supreme Court. But it is not necessary to determine this question in these proceedings and I raise the issue simply to demonstrate that there may be different answers supplied to the question: "What is a 'decision‑making authority' under s 41?" depending on whether the Town Planning Appeal Tribunal or the Supreme Court is considered. That does not detract from the general proposition that the Town Planning Appeal Tribunal is a State instrumentality. The answer to question (1) is yes.

The Town Planning Appeal Tribunal is empowered to make a decision on a proposal

It follows that the answer to question (2) must be yes. Clearly, the Town Planning Appeal Tribunal stands in the shoes of the original decision‑maker and is empowered to make a decision in respect of a proposal as defined. This appears from the provisions of the Town Planning and Development Act Pt IV and it is unnecessary to set them out. If any authority be needed for the self‑evident proposition, one need go no further than Low v Swan Cove Holdings Pty Ltd [2003] WASCA 115 per Roberts‑Smith J at [139].
The Town Planning Appeal Tribunal is a "public authority" as defined, and is, by virtue of its ability to make a decision with respect to any proposal, a "decision‑making authority" as defined.

Is a contrary intention to the definition disclosed in s 41?

I now turn to consider whether in using the word "decision‑making authority" in s 41(2) Parliament has evinced an intention not to apply to that expression the definitions in s 3. I do this to consider the alternative proposition advanced by the applicant in the event that Town Planning Appeal Tribunal does not fall within the definition of a "decision‑making authority". In that event the applicant would argue that the contrary has been shown in s 41. I also deal with the alternative submission of BGC that, on a proper reading of the Environmental Protection Act, even if the Town Planning Appeal Tribunal is a defined "decision‑making authority", the contrary is shown in s 41 and it is not a "decision‑making authority" for the purposes of s 41(2).
Before embarking on a consideration of these submissions, it is necessary to say something about the purposes of the Environmental Protection Act, as I perceive them, insofar as those purposes are relevant in applying a construction to yield an answer to the question posed.

The relevant principles of statutory construction

Under the Interpretation Act s 18:
"Regard to be had to purpose or object
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object."
This confirms to what is described as "the modern approach to statutory interpretation". In CIC Insurance Ltd v Bankstown Football Club Ltd (1995‑1997) 187 CLR 384 at 408:
"Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy."
The Environmental Protection Act 1986 by its long title is:
"An Act to provide for an Environmental Protection Authority, for the prevention, control and abatement of environmental pollution, for the conservation, preservation, protection, enhancement and management of the environment and for matters incidental to or connected with the foregoing."
The Act replaced the Scheme under the Environmental Protection Act 1971 which was repealed by the Acts Amendment and Repeal (Environmental Protection) Act 1986.
In the Second Reading Speech introducing the Environmental Protection Bill into the Legislative Assembly on 24 July 1986, the Minister for Environment set out seven major principles underlying the Bill. Included in those were:
"(3)To provide a clear mechanism for the preparation and approval of environmental protection policies, with avenues for community involvement in their development.
(4)To formalise the need for an environmental impact assessment process.
(5)To provide machinery for the Government and decision‑making authorities, where a development proposal is approved subject to environmental conditions, to agree on those conditions and to have them complied with."
In the course of the speech he stated:
"Moreover, it is the Government's aim, through this legislation, to continue with and to further encourage all tiers of Government to accept environmental management responsibilities. That role will not be lessened."
Dealing with decision‑making authorities he said:
Part IV also provides for the EPA to undertake environmental impact assessment and to report and make recommendations. As well, it provides for the Minister to use the report and recommendations as the basis for setting environmental conditions. The Minister is responsible for ensuring these conditions are enforced, although normally this will be done through relevant statutory provisions in other Acts. Nevertheless the Minister may take action on enforcement where appropriate.
Decision‑making authorities like Government departments, for example, cannot make final decisions which would have the effect of allowing referred proposals to be implemented until environmental conditions, where appropriate, have been set and the Minister so advises. However, decision‑making authorities are not prevented under these measures from beginning negotiations with relevant parties at all levels as if the proposal were to proceed, other than to make that final decision. The ultimate decision to proceed with a project can only follow receipt of the report of the EPA and the agreed conditions. The conditions have to be complied with."
Section 5 of the Environmental Protection Act gives it paramountcy over other written laws with some exceptions. Part III - "Environmental protection policies" deals with the preparation and publication by the Authority of draft environmental protection policies. A draft policy which is approved by the Minister has the force of law.

Part IV - "Environmental impact assessment"

In outline, the scheme under Pt IV provides a mechanism to make the EPA aware of a proposal which might have an effect on the environment: s 38. The EPA is obliged to keep records of all proposals which are referred to it: s 39.
The EPA is required to make a decision whether or not a proposal should be assessed: s 40. If it considers that a proposal should be assessed by it, then it is given extensive powers to conduct an assessment, including the power to conduct a public inquiry as if it were a Royal Commission: s 42. The Minister has power to direct the EPA to conduct a proposal: s 43.
The EPA shall report to the Minister after completing an assessment of a proposal: s 44.
It is in the light of the overall scheme of the Environmental Protection Act that s 41 must be considered. The object of s 41 is to stay a decision‑making authority's hand until the EPA has either decided it will not assess the proposal, or a decision is made, following assessment, whether or not the proposal can be implemented. In that event, the parties are to be notified under s 45.
It is clear that the Shire of Northam is a "decision‑making authority" as indeed is any local government authority. When exercising its powers in relation to the appeal from the Shire of Northam's refusal, the Town Planning Appeal Tribunal stands in the shoes of the decision‑making authority and may exercise any of the powers that it possesses. In particular, it may make a decision which has the effect of implementing the proposal. At first glance there would be good reason then to include the Town Planning Appeal Tribunal as a body which meets the description of a "decision‑making authority" under s 41, whether or not it fits the definition under s 3, because inclusion of it as a "decision‑making authority" would fit the context of s 41 and would therefore be an indication of an intention contrary to s 3.
BGC counters this reasoning in two ways. It points to numerous sections under the Environmental Protection Act which make it clear that the Town Planning Appeal Tribunal is not a "decision‑making authority", at least within those sections, and by analogy not under s 41.
BGC also points to an alternative statutory scheme which produces the result that environmental matters are assessed but as part of the town planning appeal procedures.

"Unless the contrary intention appears"

This phrase is commonly in use in Interpretation Acts and definition sections within Acts. Indeed, even if not expressed, it will be implied.
Before examining the sections to which BGC refer, it is helpful to consider the approach in Duperouzel v Cameron [1973] WAR 181 per Burt J at 182. At issue was a definition in the Liquor Act of the word "licensed premises" which were defined to mean "… part or those parts of a building or buildings and of the land adjoining it …".
The issue was whether a boat, in respect of which a packet licence had been issued, was licensed premises.
Burt J held that it was not. At 182, after reference to Gibb v Commissioner of Taxation (1966) 118 CLR 628 at 634, he said:
"In its application to this statute the result is that where the expression 'licensed premises' appears then 'unless a contrary or other intention appears' it is to be understood in the defined sense and so as not to include a boat. This is because the word 'means' is a word of true definition and as such the words following it stand as an exclusive statement of what the subject expression includes. As by the Act the defined expression is to carry that meaning 'unless a contrary or other intention appears' the possibility always exists that an intention that it should bear a different meaning may appear, and should it appear, the definition must be departed from so as to accommodate that intention. But the contrary or other intention must, or so it seems to me, be found within the particular context in which the defined word appears, and when found, the definition is then departed from for the purposes of that particular provision only. It cannot be right to search through the act to find a number of provisions not including the relevant provision in which the intention to depart from the definition appears and having found them, then to say that the contrary intention appears for all the purposes of the Act and hence for the purposes of the relevant provision.
…
What must appear is a contrary or other intention as to the meaning of the expression as it is used in that section, and as there is nothing to be found within that section which indicates any such intention the words as there appearing must be read with the defined meaning. …"
In Brown v Brook (1971) 125 CLR 275 Barwick CJ, in dealing with a term defined by the Money Lenders' Act (QLD) said at 277:
"The meaning assigned by such a definition section is no more than, and perhaps even less than, a prima facie meaning always yielding to a context which betrays an intention to use the defined word in a different sense, with a less extensive or perhaps a more restrictive meaning. A definition section is not intended itself to express the parliamentary intention in an enacting provision unless that provision itself does not indicate the intention with which the defined word is there used."
It is for this reason that examination of the scheme of Pt IV is important to understand the context in which the words "decision-making authority" are used in s 41, rather than to exhaustively examine the meaning of "decision‑making authority" in other sections. That said, I will nevertheless deal with the use of the expression "public authority" in other sections. Sections 18, 19 and 20 deal with delegations, by the Minister, the EPA and the Chief Executive Officer, of powers to a public authority. In context, these cannot refer to the Town Planning Appeal Tribunal. Part III is entitled "Environmental protection policies" and details the manner of the preparation and publication by the EPA of draft environmental protection policies. Section 26 requires consultation with the Western Australian Planning Commission in respect of a draft environmental protection policy concerned with the protection of a portion of the environment confined to, or with the prevention, control or abatement of pollution in, a particular local government district or districts.
The Minister is required to consider views expressed by the public authorities and persons likely to be affected in respect of draft encironmental protection policies: s 28, s 30 and s 31.
It may be accepted that none of these sections would appear to apply to the Town Planning Appeal Tribunal. From that it may be concluded that insofar as the Tribunal is concerned a contrary intention appears. However, these sections and this conclusion do not throw light on the context in which the words "decision‑making authority" are used in s 41.
Of more relevance is s 45 which reads:
"45. Procedure for deciding on implementation of proposals
(1)The Minister shall, after he has caused a report to be published under section 44(3) -
…
(b)if neither the decision-making authority, nor any of the decision-making authorities, as the case requires, referred to in paragraph (a) is another Minister, consult that decision-making authority or those decision-making authorities and, if possible, agree with it or them,
on whether or not the proposal to which the report relates may be implemented and, if that proposal may be implemented, to what conditions and procedures, if any, that implementation should be subject.
…
(3)If the Minister and the decision-making authority or decision-making authorities referred to in subsection (1)(b) cannot agree on any of the matters referred to in subsection (1), the Minister shall appoint an appeals committee to consider and report to him on the matter or matters in dispute.
(4)Sections 106, 107, 108, 109 and 110 apply to and in relation to a matter in respect of which the Minister has appointed an appeals committee under subsection (3) as if that matter were the subject of an appeal from a decision of the Minister.
(5)If agreement is reached or a decision is made under this section that a proposal may be implemented and on the conditions and procedures, if any, to which that implementation should be subject, the Minister shall cause -
(a)copies of a statement indicating that the proposal may be implemented and setting out those conditions and procedures, if any, to be served on -
(i)the Authority;
(ii)the decision-making authority or decision-making authorities consulted by him under subsection (1);
(iii)the proponent of the proposal; and
(iv)in the case of a proposal referred to the Authority under section 38(1)(b)(ii), the person who so referred that proposal;
and
(b)the statement referred to in paragraph (a) to be published as soon after the service referred to in that paragraph as is practicable.
…
(7)The Minister may, as soon as he is satisfied that there is no reason why a proposal in respect of which a statement has been published under subsection (5)(b) should not be implemented, cause to be served on the decision-making authority precluded by section 41 from making any decision that could have the effect of causing or allowing that proposal to be implemented an authority in writing permitting such a decision to be made.
(8)If an agreement is reached or a decision is made under this section that a proposal may not be implemented, the Minister shall forthwith notify the persons referred to in subsection (5)(a)(i), (ii), (iii) and (iv) in writing accordingly."
There is force in the submission that s 45 cannot be intended to cover the Town Planning Appeal Tribunal because it is hardly to be supposed that an independent body is exercising administrative powers judicially and, subject to a right of appeal to the Supreme Court on a question of law, was intended by Parliament to be a party to an appeal to the Appeals Committee.
In amplification of this submission, BGC refers to the scheme under the Town Planning and Development Act. It is submitted, correctly, that the Town Planning Appeal Tribunal is bound by the rules of justice, must conduct a hearing in public, has coercive powers to compel evidence and must give written reasons for its decision. Attention is particularly directed to the Town Planning and Development Act s 60 which provides that before determining an appeal on a decision relating to an environmental condition, the Tribunal is to invite the Minister for the Environment to make a submission in respect of that appeal. Of course it must be acknowledged that the Minister for the Environment is not the EPA. Notwithstanding that, the Tribunal may hear or receive submissions from a person who is not a party to an appeal: s 62.

Conclusion

For all these reasons, I am of opinion that the Town Planning Appeal Tribunal is a State instrumentality, thus a "public authority" and a defined "decision‑making authority". Therefore it falls directly within s 41 and it is not to the point that in other sections a contrary intention may be construed.
In dealing with both the applicant's alternative argument and the respondent's alternative argument, if it is necessary, I would construe s 41 and s 45(7) as expressing a very clear intention to include the Town Planning Appeal Tribunal as a "decision‑making authority". I have reached this view notwithstanding that other subsections of s 45 may be construed differently.
I reach this conclusion from my analysis of the scheme of the Environmental Protection Act Pt IV, and bearing in mind the legislative intention of paramountcy disclosed in s 5. Parliament intends that any proposal which, if implemented, is likely to have a significant effect on the environment, must be first assessed by the EPA. In order to give the EPA time to carry out that assessment, other decision‑making bodies must pause until the assessment has been completed. Because the Town Planning Appeal Tribunal stands in the shoes of the local authority, being able to make all the decisions of that authority on appeal, the clear statutory scheme would be subverted if the Town Planning Appeal Tribunal were not a "decision‑making authority" under s 41. The Town Planning Appeal Tribunal is an independent body required to act judicially. The scheme gives the EPA paramountcy in environment impact assessment of proposals notwithstanding.
I propose that a writ of prohibition in terms of s 41 should issue in the following terms:
"The Town Planning Appeal Tribunal be prohibited from making any decision in Appeal No 32 of 2002 that could have the effect of causing or allowing the proposal to be implemented until an authority is served on it under the Environmental Protection Act s 45(7)."