Schaap v Tasmanian Water and Sewerage Corporation (North West Region) Pty Ltd
[2013] TASSC 17
•10 May 2013
[2013] TASSC 17
COURT: SUPREME COURT OF TASMANIA
CITATION:Schaap v Tasmanian Water and Sewerage Corporation (North West Region) Pty Ltd [2013] TASSC 17
PARTIES: SCHAAP, Alexander
v
TASMANIAN WATER AND SEWERAGE
CORPORATION (NORTH WEST REGION) PTY LTD
FILE NO: 724/2012
DECISION
APPEALED FROM: Tasmanian Water & Sewerage Corporation (North Western Region) Pty Ltd trading as Cradle Mountain Water v Environment Protection Authority [2012] TASRMPAT 112
DELIVERED ON: 10 May 2013
DELIVERED AT: Hobart
HEARING DATE: Written submissions only
JUDGMENT OF: Blow CJ
CATCHWORDS:
Environment and Planning – Pollution – General matters – Other States and Territories – Tasmania – Environment protection notices – Power to impose requirements as to dangerous substances.
Dangerous Substances (Safe Handling) Act 2005 (Tas), ss5(1), 13(1)(b).
Environmental Management and Pollution Control Act 1994 (Tas), s44(1).
Aust Dig Environment and Planning [358.4]
Statutes – Acts of Parliament – Repeal – Implied repeal – By inconsistent Act – Particular cases – Environmental statute authorising issue of notices imposing requirements – Later statute imposing requirements as to safe storage of dangerous substances – Validity of condition in notice under former Act as to storage of dangerous substances.
Dangerous Substances (Safe Handling) Act 2005 (Tas), ss5(1), 13(1)(b).
Environmental Management and Pollution Control Act 1994 (Tas), s44(1).
Garnett v Bradley (1878) 3 App Cas 944; Butler v Attorney-General (Vic) (1961) 106 CLR 268; Saraswati v R (1991) 172 CLR 1; Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, referred to.
Aust Dig Statutes [1158]
REPRESENTATION:
Counsel:
Appellant: P Turner
Respondent: S B McElwaine
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Shaun McElwaine + Associates
Judgment Number: [2013] TASSC 17
Number of paragraphs: 36
Serial No 17/2013
File No 724/2012
ALEXANDER SCHAAP v TASMANIAN WATER
AND SEWERAGE CORPORATION (NORTH WEST REGION) PTY LTD
REASONS FOR JUDGMENT BLOW CJ
10 May 2013
This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal. It concerns the Sheffield Wastewater Treatment Plant. That plant is operated by the respondent, Tasmanian Water and Sewerage Corporation (North West Region) Pty Ltd, which is usually referred to by the name "Cradle Mountain Water". The appellant is the Director of the Environment Protection Authority. On 23 March 2012 he issued an environment protection notice to the respondent in respect of the plant in question pursuant to the Environmental Management and Pollution Control Act 1994 ("the EMPC Act"), s44(1). The respondent was aggrieved by one of the conditions contained in the notice, condition H1, which related to the storage and handling of hazardous materials. It appealed to the tribunal pursuant to s44(6) of the EMPC Act. It was successful. On 23 July 2012 the tribunal, constituted by its chairman, Mr S Cooper, made a decision varying the notice by deleting condition H1. This is an appeal by the Director from that decision.
Condition H1 read as follows:
"Hazardous Substances
H1 Storage and handling of hazardous materials
Unless otherwise approved in writing by the Director, environmentally hazardous material held on The Land, including chemicals, fuels and oils, must be located within impervious bunded areas or spill trays which are designed to contain at least 110% of the total volume of material."
Before the tribunal, the respondent contended that the Director had no power under s44 of the EMPC Act to impose any condition or requirement relating to the storage or handling of hazardous materials, on the basis that such matters were covered exclusively by the Dangerous Substances (Safe Handling) Act 2005 ("the DSSH Act"), and regulations made thereunder. The tribunal did not conduct a hearing but instead received written submissions from the parties' legal representatives. The tribunal accepted the arguments advanced on behalf of the respondent. It concluded that the DSSH Act and the regulations made under it were intended to cover the field with respect to the storage and handling of dangerous substances, "to the exclusion of all other forms of regulation". The tribunal also concluded that, if it was wrong as to that, it was "not persuaded the condition imposed is necessary or reasonable".
There are five grounds of appeal. By grounds 1 and 2, the Director contends that the tribunal erred in law in concluding that he had no power to impose condition H1. Grounds 3, 4 and 5 involve contentions as to the conclusion that the tribunal was not persuaded that the condition was necessary or reasonable.
Did the Director have powers in relation to dangerous substances?
From the material before me, it appears that a permit was issued to a previous owner of the relevant land in January 1989. It seems likely that a licence was then granted under the Environment Protection Act 1973, s25, and that that licence was treated as a permit under the Land Use Planning and Approvals Act 1993 after the commencement of the EMPC Act pursuant to Schedule 6, cl 3(1) thereof.
The notice of 23 March 2012, which is 26 pages long, imposed a comprehensive series of requirements. The Director issued it pursuant to s44(1)(a), (c) and (d) of the EMPC Act. Those provisions read as follows:
"(1) Where the Director is satisfied that in relation to an environmentally relevant activity —
(a)serious or material environmental harm or environmental nuisance is being, or is likely to be, caused; or
(b…; or
(c)it is necessary to do so in order to give effect to a State Policy or an environment protection policy; or
(d)it is desirable to vary the conditions or restrictions of a permit; or
(e)… —
the Director may cause an environment protection notice to be issued and served on the person who is or was responsible for the environmentally relevant activity."
Under s44(3)(d) an environment protection notice "may impose any requirement reasonably required for the purpose for which the notice is issued".
The Environment Protection Authority was established by s12(1) of the EMPC Act. It consists of its Board and the Director. The Director is one of the members of the Board: s13A(1)(b). The principal functions of the Board are listed in s14(1), which reads as follows:
"(1) The functions of the Board are to administer and enforce the provisions of this Act, and in particular, to use its best endeavours —
(a)…
(b)to further the objectives of this Act; and
(c)to ensure the prevention or control of any act or omission which causes or is capable of causing pollution; and
(d)to advise the Minister, on the request of the Minister or at the discretion of the Board, on any matter that may significantly affect the achievement of the objectives of this Act; and
(e)to ensure that valuation, pricing and incentive mechanisms are considered in policy making and programme implementation in environmental issues."
Section 9 of the EMPC Act deals with that Act's interaction with other Acts. Prior to 6 December 2012 that section read as follows:
"(1) This Act does not derogate from the provisions of any other Act.
(2) This Act does not apply to circumstances to which the Pollution of Waters by Oil and Noxious Substances Act 1987 applies."
Tasmania had dangerous goods legislation when the EMPC Act commenced. The relevant statute was then the Dangerous Goods Act 1976. Section 8(1) of that Act imposed a general prohibition on keeping dangerous goods. However there were other provisions that authorised the regulation of the keeping of dangerous goods, the licensing of premises and so forth: s8(3) and (4), s9. No reference to that Act was made in the EMPC Act, nor is there any reference in the EMPC Act now to the DSSH Act. It is clear from s9(1) that the EMPC Act was not intended to derogate from the provisions of the dangerous goods legislation that were in force at its commencement. But the question I have to decide is whether the DSSH Act was intended to derogate from the provisions of the EMPC Act.
The relevant provisions of the DSSH Act can be summarised as follows:
· Under s5(1), for the purposes of the Act, a "dangerous substance" is one that has the potential to cause harm to persons, property or the environment because of its chemical and/or physical and/or biological properties.
· Under s13(1)(b), all persons who "handle" dangerous substances have an obligation "to take all reasonable precautions and care to achieve an acceptable level of risk".
· By virtue of s9(1)(g) and (h), a person "handles" a dangerous substance if he or she possesses, or otherwise has custody or control of, the dangerous substance, or stores or keeps the dangerous substance.
· Section 14(1) provides, "An acceptable level of risk is achieved when risk is minimised as far as reasonably practicable."
· By virtue of s15(1), it is an offence for a person not to discharge a safety obligation imposed by the Act, including the obligation imposed by s13(1)(b).
· Under s98(2)(c), the Governor may make regulations that "prescribe ways of achieving acceptable levels of risk for the purposes of discharging safety obligations".
· Section 18(1) provides, "If the regulations prescribe a way of achieving an acceptable level of risk, a person may discharge the person's safety obligation regarding the risk only by following the prescribed way."
· Under s27(1), the Minister "may approve codes of practice that state ways of achieving acceptable levels of risk".
· By virtue of s18(3), subject to any regulations, "if an approved code of practice states a way of achieving an acceptable level of risk, a person may discharge the person's safety obligation regarding the risk only by … adopting and following the stated way; or … adopting and following another way that achieves a level of risk equal to or lower than the acceptable level".
· In the absence of any applicable regulation or approved code of practice, s19(2) applies. Under that subsection, a person with a safety obligation "may choose an appropriate way to discharge the person's safety obligation regarding the risk".
· Under s69(2), if an authorised officer reasonably believes that a risk from a major hazard facility, a dangerous substances location, or some other "facility" (defined as premises where dangerous substances are, or are to be, handled), then that officer may direct the occupier of the facility or location "to take specified corrective or preventative action to reduce the risk to an acceptable level".
Counsel referred in their submissions to the Dangerous Substances (Safe Handling) Regulations 2009, but not to any particular provision in those regulations. Those regulations are largely focussed on explosives, blasting and fireworks. There does not seem to be anything in them of any relevance to the treatment plant at Sheffield. There is nothing in any of the material before me to suggest that there are any s27(1) codes of practice that have any relevance to this case. Nor is there anything in the material before me to suggest that any authorised officer had given a direction under s69(2) that was relevant to this case.
There is no direct inconsistency between the EMPC Act and the DSSH Act. Counsel for the respondent acknowledged that in his written submissions. However he argued that Parliament has chosen to regulate the keeping and use of dangerous goods in a very comprehensive way pursuant to the DSSH Act; that Parliament intended that that Act cover the field; and that the result was that the Director was precluded from exercising his powers under the EMPC Act in relation to the subject-matter of the DSSH Act.
There are many reported cases about inconsistent and overlapping statutes. I think I need not refer to many of them in order to make the applicable principles clear. In Garnett v Bradley (1878) 3 App Cas 944 at 966, Lord Blackburn said:
"I shall not attempt to recite all the contrarieties which make one statute inconsistent with another; the contraria which make the second statute repeal the first. But there is one rule, a rule of common sense, which is found constantly laid down in these authorities to which I have referred, namely, that when the new enactment is couched in general affirmative language and the previous law, whether a law of custom or not, can well stand with it, for the language used is all in the affirmative, there is nothing to say that the previous law shall be repealed, and therefore the old and the new laws may stand together. There the general affirmative words used in the new law would not of themselves repeal the old. But when the new affirmative words are, as was said in Stradling v Morgan [(1560) 1 Plow 199 at 206; 75 ER 305 at 317], such as by their necessity to import a contradiction, that is to say, where one can see that it must have been intended that the two should be in conflict, the two could not stand together; the second repeals the first."
That passage was quoted with approval by Fullagar J in Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276. His Honour dissented in that case, but only in relation to a question whether a particular statute had impliedly repealed an earlier one.
An example of two pieces of legislation operating concurrently in relation to common subject-matter is to be found in Lloyd v Blake (1917) 35 WN(NSW) 2. A municipal by-law gazetted in 1912 prohibited persons on premises abutting on or near any public way from acting or behaving in such a manner as to "create a public nuisance or to cause to collect in such public way a number of persons to the obstruction of or interference with the traffic thereon or the persons using the same". Then in 1913 legislation was passed giving the police the power to regulate pedestrian traffic. It was argued that the by-law had become inoperative as a result. At 4, Ferguson J rejected that argument, saying:
"I see no inconsistency between the power given to the police, to regulate traffic upon footways and public streets, and the power exercised by the Municipal Council of Sydney to prevent things being done in the neighbourhood of the street, which will create a public nuisance."
More recently, in Saraswati v R (1991) 172 CLR 1 at 17, Gaudron J said:
"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other …".
In Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, the High Court held that a statute relating to the South Australian Police had impliedly repealed the wrongful dismissal provisions of an industrial relations statute to the extent that they would otherwise have applied to the termination of an appointment of a police officer in consequence of a conviction for an offence. At par[4], Gleeson CJ, referring to the judgment of Gaudron J in Saraswati, said:
"The problem is one of statutory interpretation; a problem that arises only because the legislature did not state an intention either that the two statutory regimes should both apply in such a case, or that the second regime should apply to the exclusion of the first. The legislature may, by necessary implication, manifest an intention of the latter kind, although partial repeal of an earlier statute by a later statute will only be inferred on 'very strong grounds'."
At par[48], Gummow and Hayne JJ referred to the judgment of Gaudron J in Saraswati, and said:
"… the general presumption is that there is no contradiction between two Acts of the one legislature."
Kirby J dissented as to the result in that case, but was in agreement with the majority as to the applicable principles. At par[108] his Honour said:
"The most enduring of the canons of construction that have been applied throughout the history of this Court is that which enjoins the decision-maker, faced with apparent statutory intersection, to endeavour, to the fullest extent permitted by the language, to read the two statutes so that each, within its own sphere, can continue to operate, such that no part of either is taken to be repealed or inoperative, for Parliament has not said so …".
If the tribunal's decision and the contentions of the respondent were correct, the curtailment of the Director's powers would be enormous. As I have said, for the purposes of the DSSH Act, a dangerous substance is one that has the potential to cause harm to persons, property or the environment because of its chemical and/or physical and/or biological properties: s5(1). Every pollutant would seem to constitute a dangerous substance for the purposes of the Act. If Parliament had intended the EMPC Act no longer to apply in relation to the storage or handling of pollutants, I think the DSSH Act would have made that very clear.
It is important to realise that the two statutes have different objectives. The DSSH Act is concerned with the safety of persons, property and the environment. The EMPC Act contains provisions requiring the furtherance of the objectives of the resource management and planning system of Tasmania and other objectives relating to environmental management and pollution control: ss8, 12 and 28, and Schedule 1. The furtherance of those objectives could often require the imposition of requirements relating to pollutants or other "dangerous substances" that go beyond the safety requirements imposed by and under the DSSH Act, its regulations, and its codes of practice.
When the DSSH Act was enacted, Parliament left it to others to decide what regulations and codes of practice were to be introduced pursuant to it. There is nothing in that Act to suggest that Parliament intended that regulations or codes of practice should be introduced to regulate the storage and handling of all types of dangerous substances. Without detailed regulations and codes of practice, the Act went no further than making general provisions as to risk minimisation and the giving of specific directions by authorised officers.
All of these factors have led me to the conclusion that it was intended that the DSSH Act and the EMPC Act should operate concurrently in relation to subject-matter that was within the scope of each of them. In my view there is nothing in the DSSH Act that supports an implication that Parliament intended the EMPC Act to be wholly inoperative insofar as it was relevant to the storage and handling of dangerous substances. In my view the ordinary presumption that both statutes should operate together has not been displaced. However it would be improper for the Director, by means of a notice under s44(1) of the EMPC Act, to impose a requirement on a person to do something that would amount to a contravention of the DSSH Act. To that extent, I think that the later Act must prevail over the earlier one. However, subject to that qualification, there is no reason why the Director's powers should be treated as curtailed.
The tribunal erred in law in holding that the Director had no power to impose condition H1. Grounds 1 and 2 must succeed.
Errors of law as to necessity or reasonableness?
In par[12] of its decision, after concluding that the Director had no power to impose the impugned condition, the tribunal said:
"If it is wrong as to that, for the reasons set out above the Tribunal is not persuaded that the condition imposed is necessary or reasonable."
On a literal reading of that sentence, one might think that the tribunal was not expressing a conclusion. If that view were correct, there would be no need to consider grounds 3, 4 and 5. However, having regard to the context of that sentence, I think it should be interpreted as a finding by the tribunal that condition H1 was unnecessary and unreasonable.
The grounds of appeal relating to that sentence read as follows:
"3The Tribunal erred in law in determining that the subject condition was not necessary or reasonable by failing to properly construe the provisions of the Dangerous Substances (Safe Handling) Act 2005 and Regulations made thereunder and the Environmental Management and Pollution Control Act 1994, as set out in Grounds 1 and 2.
4The Tribunal erred in law in determining that the subject condition was not necessary or reasonable by failing to take into account relevant considerations, being the material differences between the Dangerous Substances (Safe Handling) Act 2005 and Regulations made thereunder and the Environmental Management and Pollution Control Act 1994.
5The Tribunal erred in law in determining that the subject condition was not necessary or reasonable by failing to give adequate reasons for such determination, as required by s24 of the Resource Management and Planning Appeal Tribunal Act 1993."
Ground 3
In his submissions as to ground 3, counsel for the appellant argued only that, as a result of making an incorrect finding of law as to the power of the Director to impose condition H1, the tribunal went on to make an incorrect finding of fact that the condition was neither necessary nor reasonable. An appeal from the tribunal to this Court may only be instituted on a question of law: Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), s25(1). Ground 3 must fail because it does not concern a question of law.
Ground 5
The tribunal has a duty to give written reasons for its determination of an appeal: RMPAT Act, s24(1). Those reasons must include "its findings on material questions of fact and a reference to the evidence or other material on which those findings were based": s24(2). The stated reasons in relation to the necessity and reasonableness of the impugned condition were very brief, but I have no reason to suspect that the tribunal's conclusion was based on any additional reasoning that the tribunal did not disclose. I think this is a situation in which the Court should conclude that the decision-maker did not consider any other matters to be material: Wrigley v Holland [2002] NSWCA 109 at par[16]. It follows that the tribunal complied with s24. Ground 5 must fail.
Ground 4
Counsel for the Director submitted that the tribunal erred in law in failing to take into account as relevant considerations two material differences between the DSSH Act and the EMPC Act:
· The fact that the power given to the Director to impose requirements by means of a s44(1) notice may extend beyond that which is required as a minimum by the DSSH Act.
· The fact that the means of enforcing a s44(1) notice are quite different to the means by which a person or corporation may be required to comply with the DSSH Act.
Condition H1 required the respondent to hold all environmentally hazardous material on the relevant land "within impervious bunded areas or spill trays". It also imposed a requirement as to the size of such impervious bunded areas and spill trays. The tribunal did not consider the advantages and disadvantages of impervious bunded areas, of spill trays, or of the specified size requirements. It rejected the requirements as to impervious bunded areas and spill trays as unnecessary and unreasonable because the DSSH Act provided a regulatory regime for hazardous substances parallel to that of the EMPC Act. Its conclusion as to what was necessary and reasonable was based solely on an evaluation, of sorts, of the DSSH Act's regulatory regime. The Director is relying on contentions that, in undertaking that evaluation, the tribunal failed to take relevant considerations into account.
As I have said, the tribunal made its decision without taking any evidence. It received written submissions only in relation to the law. Its conclusions as to necessity and reasonableness were findings of fact based on those written submissions, without any evidence as to the purposes that impervious bunded areas and spill trays might serve, and without any evidence as to what dangerous substances, other than sewage and wastewater, were held on the relevant land, or likely to be held there. Without any such evidence, the tribunal could not rule out the possibility that condition H1 was intended to promote objectives other than the safe storage and handling of materials that constituted dangerous substances for the purposes of the DSSH Act.
When the Director issues an environment protection notice under s44(1), and that notice requires a person to take a measure in relation to the storage of substances, it might impose restrictions, for the purpose of managing the environment, that go beyond those necessary for achieving an acceptable level of risk, or minimising risk as far as reasonably practicable, for the purposes of the DSSH Act. That was not a matter that the tribunal took into account. Taking it into account might have led the tribunal not to have made the finding impugned by ground 4.
The failure to take into account a relevant matter amounts to an error of law, at least when, but for the error, the decision in question might have been different: Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 per Mason J (as he then was) at 40; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 353.
It follows that ground 4 must succeed. I have no need to consider the submission concerning the different means of enforcement available under the two statutes.
Disposition of the appeal
It follows that the tribunal's decision must be set aside. Even if I am wrong as to ground 4, I think that, grounds 1 and 2 having succeeded, and the tribunal having paid so little attention to the merits of condition H1, the most appropriate course would still be to set aside the tribunal's decision. I will hear counsel as to whether I should make a decision of my own under s25(6)(b)(i) of the RMPAT Act dismissing the appeal to the tribunal and allowing condition H1 to stand, or whether I should remit the matter to the tribunal pursuant to s25(6)(b)(ii) for reconsideration, with or without directions from the Court.
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