Recycal Pty Ltd v Director, Environment Protection Authority and
[2023] TASSC 19
•22 June 2023
[2023] TASSC 19
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Recycal Pty Ltd v Director, Environment Protection Authority and |
| Environment Protection Authority [2023] TASSC 19 | |
| PARTIES: | RECYCAL PTY LTD |
| v | |
| DIRECTOR, ENVIRONMENT PROTECTION | |
| AUTHORITY | |
| ENVIRONMENT PROTECTION AUTHORITY | |
| FILE NO: | 163/2023 |
| JUDGMENT | |
| APPEALED FROM: | Recycal Pty Ltd v Environmental Protection Authority Tasmania [2023] TASCAT 1 |
| DELIVERED ON: | 22 June 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 30 May 2023 |
| JUDGMENT OF: | Marshall AJ |
| CATCHWORDS: |
Administrative law – Judicial review – Grounds of review – Error of law – Tribunal did not err by failing to adequately disclose reasoning process – Tribunal did not misunderstand evidence – Tribunal did not err in finding compliance with a condition of an Environmental Protection Notice was not impossible or infeasible – No error of law found – Appeal dismissed.
Aust Dig Administrative Law [1030]
REPRESENTATION:
Counsel:
Appellant: D Deller First and Second Respondent: M Jehne
Solicitors:
Appellant: Madgwicks Lawyers First and Second Respondent: Office of the Solicitor-General
| Judgment Number: | [2023] TASSC 19 |
| Number of paragraphs: | 40 |
Serial No 19/2023 File No: 163/2023
RECYCAL PTY LTD v DIRECTOR, ENVIRONMENT PROTECTION AUTHORITY
and ENVIRONMENT PROTECTION AUTHORITY
| REASONS FOR JUDGMENT | MARSHALL AJ 22 June 2023 |
1 This is an appeal from a decision of the Tasmanian Civil and Administrative Tribunal ("the Tribunal") which affirmed a decision of the first respondent to issue two Environmental Protection Notices ("EPNs") insofar as they contain a condition known for the purposes of this proceeding as condition "CW3".
2 The appellant has a business at a site in Rocherlea, a suburb of Launceston, where it receives metal waste materials and recycles them. The site is just under six hectares in size and discharges stormwater from one point on the property directly onto a neighbouring pastoral property. The stormwater then flows into a watercourse and from there into a dam which is used for irrigation and stock watering. The overflow from the dam runs into a tributary of the Tamar River.
3 Water discharging from the site is wastewater which is polluted with heavy metals and PFOS, which is a synthetic chemical.
4 This proceeding has its genesis in a fire which occurred at the Rocherlea site on 7 February 2022. Firefighting activity led to the pumping of about 12 million litres of water onto the fire. The water escaped the premises through the single stormwater discharge outlet on the property, thereby causing contaminated water to escape the premises.
5 As a result of the fire and the consequent wastewater problem being highlighted, the first respondent issued two EPNs. The appellant is aggrieved by the issuing of those EPNs insofar as they contain the condition known as CW3, or in the same terms as CW3.
6 To be precise, the relevant conditions are in identical terms and are CW3 and DS1 of EPNs 11143/1 and 11145/1. The appellant seeks that the conditions be deleted from the EPNs from the date of their issue.
7 Condition CW3 of EPN 11143/1 provided, insofar as material, that:
"Unless otherwise approved by the Director, all runoff from the land must be prevented from discharging from one site and must be disposed of at a facility authorised to receive it."
8 The Tribunal described CW3 as:
"A water containment condition that works with the following condition CW4 in
respect to a site management plan."
9 The Tribunal made that observation at [100] of its reasons. It referred to evidence that discharge from the appellant's site contained "contamination of concern" which "must be regulated accordingly". It also noted that "all water leaving the site contains contamination to some degree". At [107] the Tribunal referred to evidence before it that "the intention of the EPA was to revoke or update condition CW3 when the Site Water Management Plan required by condition CW4 was prepared".
2 No 19/2023
10 Condition CW4 provides that:
"Within 30 days of the date on which these conditions take effect the person responsible must submit to the Director for approval, a Site Water Management Plan completed by a suitably qualified professional. This requirement will be deemed to be satisfied only when the Director indicates in writing that the submitted document adequately addresses the requirements of this condition to their (sic) satisfaction."
11 CW4 then goes on to refer to matters which must be included in a Site Water Management Plan including "any proposed changes that ensure polluted runoff is retained and collected on site prior to disposal".
12 There is no evidence that the appellant has complied with this requirement although there was an indication from its counsel from the bar table to the effect that the appellant is working towards a plan. That it has been dilatory in doing so is an understatement.
13 Conditions CW3 and CW4 are intended to be read together. CW3 was an emergency measure to deal with a clear and present danger to the environment, and CW4 was an avenue for some relaxation of the requirements of CW3 by the implementation of a Site Water Management Plan. Ultimately, the Tribunal decided to "re-set the clock for compliance with the EPNs to run from the date of (its) decision". No stay has been sought on the operation of CW3.
14 Before the Tribunal, the appellant relied on the evidence of Mr Nan Tie to submit that condition CW3 was not feasible and should be deleted from the EPN. Mr Nan Tie is an environmental scientist. Mr Nan Tie stated at [41] of his witness statement that:
"This amount of water cannot feasibly be stored on site and would need to be taken off
site…there is not enough space to store the water …".
15 Mr Nan Tie later said that there were not enough eductor trucks available to transport the water to an approved site and, even if there were enough trucks, the cost of transport would be prohibitive. His assessment was based on a commonly occurring wet day when in excess of 10 millimetres of rain would fall. At [46] of his statement, Mr Nan Tie said that "preventing all stormwater from leaving the site is not feasible or practical. Thus, the option being considered requires off-site discharge".
16 Under cross examination, Mr Nan Tie conceded that the appellant was obliged to collect and treat any water "discharging" from the site to the extent necessary to prevent environmental damage. Mr Nan Tie was not directly challenged on his view contained in his statement that it was not feasible or practical to prevent all stormwater leaving the site, but did accept that there was an obligation on the appellant, in any case, to prevent environmental damage.
17 The main witness for the second respondent on the topic of condition CW3 was Ms Anita Howard. Ms Howard is the manager of the northern industrial regulations section of the second respondent. Ms Howard was asked in cross examination how all run off could be prevented from discharging from the site. She responded by referring to the opening words of CW3 which gave the first respondent the ability to approve a plan to alleviate the need for the requirement to prevent all run off from the land. Ms Howard gave evidence to the effect that the second respondent was waiting on the appellant to come up with a proposal in the form of a Site Management Plan as an exemption to the requirement to prevent all run-off.
18 At [100] of its reasons for decision, the Tribunal said:
"CW3 is a water containment condition that works with the following condition CW4
in respect to a site management plan".3 No 19/2023
19 At [109] of its reasons, the Tribunal said:
"The reasons for including such a condition at the time for this particular site are understandable. The appellant is responsible for the discharge that leaves its site and enters onto the neighbouring property … The evidence did not demonstrate that the appellant is taking responsibility to prevent polluted run-off from leavings its site. The appellant has not to date shown itself able to treat, control and separate the discharge."
20 At [110] the Tribunal said:
"CW3 is intended to be temporary and to be reviewed upon the receipt of the Site Water Management Plan produced under CW4…It is a bespoke condition responding to particular issues and characteristics presiding at the time of the issuing of the EPNs."
21 At [111] the Tribunal advised that:
"The site water management infrastructure is not in a state that can prevent polluted
water from leaving the site".
22 The critical passages on the topic of CW3 in the Tribunal's decision appear at [121]-[124]
inclusive.
23 At [121] the Tribunal said:
"Mr Tie suggested that treating all run off from the site due to the volumes involved and the distance to the George Town Sewerage Treatment for disposal may be unfeasible. The fact that it might be onerous in the short term does not mean that it is unreasonable. CW3 is a temporary condition and the appellant can identify what is possible with its site discharges via the Site Water Management Plan required by condition CW4".
24 At [123] the Tribunal said:
"The appellant has not complied with the conditions. It is submitted that it needs some
relief from the requirement to prevent all run off and needed flexibility…".
25 At [124] the Tribunal said:
"…the condition…was issued following an emergency event. Meeting the condition may be difficult but it is not impossible. The EPA accepts that it would be difficult to prevent all stormwater leaving the site indefinitely but it is intended to be short term, and it is justified to prevent contaminants posing an Eco toxicity risk by leaving the site and entering neighbouring land. The appellant can take actions to change the site arrangements to negate the need for all run off to be prevented from leaving the site. The "unless otherwise approved the Director" proviso will permit the appellant to seek approval for alternative arrangements".
26 The Tribunal saw conditions CW3 and CW4 as operating together. Practically it saw compliance with CW3 in a large rain event as "difficult" but effectively saw CW3 as an incentive to engage with the Environment Protection Authority (EPA) in coming to agreement as soon as is practicable on a Site Water Management Plan, under CW4.
27 The role of the Court in this appeal from the Tribunal is not one of merits review. The Court can only interfere with a decision of the Tribunal if legal error in the decision of the Tribunal is identified. I now turn to the grounds of appeal relied on by the appellant in its notice of appeal filed in this Court.
4 No 19/2023
Ground 1
28 Ground 1 asserts that the Tribunal erred in law by finding that Mr Nan Tie "suggested that treating all run-off from the site due to the volumes involved and the distance to the George Town Sewerage Treatment Plant for disposal may be unfeasible in the absence of evidence".
29 In its contentions in support of its appeal, the appellant noted that Mr Nan Tie's evidence was to the effect that preventing all stormwater from leaving the site is not feasible or practical. The appellant takes issue with the word "suggested" used by the Tribunal in connection with Mr Nan Tie's evidence. The reasons of the Tribunal are not intended to be read like acts of Parliament are to be read. I consider the word "suggested" was used synonymously with the words "said" or "indicated" or "gave evidence that". The appellant also takes issue with the use of the words "may be unfeasible" when Mr Nan Tie was saying that compliance with CW3 was unfeasible. Nothing turns on the difference. The Tribunal accepted that compliance with CW3 was always going to be difficult to comply with until a Site Water Management Plan was completed.
30 No error of law is disclosed by ground 1. The ground essentially takes issue with relatively imprecise language used by the Tribunal rather than the practical effect of that language. Properly read, in context, there is no error of law in the Tribunal's treatment of the evidence of Mr Nan Tie at [121] of its reasons.
Ground 2
31 Ground 2 is allied to ground 1. It asserts that [121] of the Tribunal's reasons show that it misunderstood the "material evidence" of Mr Nan Tie at [121]. As a matter of fact, that assertion is wrong, as can be seen from the discussion relating to ground 1. No error of law is thereby made out.
Ground 3
32 At ground 3, the appellant contends that the finding at [124] that meeting CW3 may be difficult but it not impossible in the absence of evidence, led the Tribunal to err in law. The effect of the evidence of Mr Nan Tie was that it would be exceedingly difficult to comply with condition CW3. Whether it was impossible to do so, and whether CW3 was impossible to comply with, was not the focus of the decision of the Tribunal. The Tribunal acknowledged the great challenges and difficulties involved in compliance with CW3 but importantly referred to the fact that it was to be read with CW4 and was a short term measure arising from an emergency and effectively an incentive for the appellant to promptly engage with the Director of the EPA to arrive at a Storm Water Management Plan as soon as possible. That is essentially what led to the Tribunal's decision. Trawling through the decision, examining each word used under a microscope searching for possible error, is not a helpful method of seeking to identify legal error; see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259. Ground 3 is not made out.
Ground 4
33 Ground 4 is allied to ground 3. It asserts a lack of logicality in making the finding that CW3 may be difficult but it is not impossible. What was "impossible" is distinct from not "feasible" and was not closely examined by the evidence. The Tribunal acknowledged the difficulty of compliance was the central tenet of its decision and neither party contended that it was not going to be exceedingly difficult to comply. Whether it was impossible or not, in context, means little. Consequently, a finding to that effect (which was not essential for the Tribunal to arrive at to come to its decision) was not an illogical finding. The reality is that if a major event occurred the appellant would have to do everything it could to comply with CW3 unless it reached an agreement under CW4. Also, at no time did Mr Nan Tie allege that compliance with CW3 was impossible as distinct from unfeasible. Ground 4 is not made out. The test for illogically or irrational decision-making set out in Minister for Immigration and
5 No 19/2023
Citzenship v SZDMS [2010] HCA 16, 240 CLR 611, at [130], [135] per Crennan and Bell JJ has not been shown to be transgressed.
Ground 5
34 Ground 5 states that:
"The Tribunal erred in law by failing to explain adequately the reasoning process for rejecting the evidence given by Mr Nan Tie at [40] of his statement …that preventing all stormwater from leaving the site is not feasible or practical."
35 It is by no means clear that that evidence was rejected. The Tribunal referred at [123] to treatment options suggested by Mr Nan Tie "that could be feasible". It said that compliance with CW3 would be difficult but it was a short term measure designed to encourage the appellant to agree with the EPA on a Storm Water Management Plan. No failure to disclose a reasoning process is evident. Ground 5 is not established.
Ground 6
36 Ground 6 relies on the argument that the Tribunal failed to explain adequately the reasoning process for rejecting the evidence of Mr Nan Tie at [43] of his statement about the number of trucks required to transport run off, their commercial availability and the logistical problems in travelling to George Town. The Tribunal did not, in terms, reject that evidence. It may have formed part of its conclusion that compliance with CW3 would be "difficult". In the circumstances it was not evidence upon which specifically the Tribunal was required to make a finding about.
37 In any event the challenge based on inadequate reasoning by an administrative tribunal is not properly based on its failure to adequately explain a reasoning process but whether a reasoning process is disclosed at all. In this case it was, both as to grounds 5 and 6. Ground 6 is also rejected.
Ground 7
38 Ground 7 states that:
"The Tribunal erred in law by failing to consider the ground of appeal to the Tribunal that the requirement to retain and prevent all site water from discharging from the site cannot be reasonably or practically fulfilled."
39 This ground is also not established. The Tribunal set out the amended grounds of appeal before it at [26] of its decision. At [102] it set out the arguments of the appellant about the difficulty in preventing all run-off from discharging from the site. It considered that argument in finding that compliance with CW3 would be "difficult" but nonetheless at [134] was satisfied as to the reasonableness and appropriateness of CW3 when read in conjunction with CW4.
Conclusion and Order
40 The appellant has failed to identify any error of law in the decision of the Tribunal. The appropriate order is as follows:
1 The appeal is dismissed. 2 The appellant pay the respondents' costs of and incidental to the appeal.
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