Sustainable Organics v Department of Environment and Management
[2010] QPEC 129
•6 December 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Sustainable Organics v Department of Environment & Management [2010] QPEC 129
PARTIES:
SUSTAINABLE ORGANICS (WOOSHAWAY PTY LTD)
(appellant)And
CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(respondent)FILE NO/S:
144 of 2010
DIVISION:
Planning and Environment Court
PROCEEDING:
Application for costs
ORIGINATING COURT:
Brisbane
DELIVERED ON:
6 December 2010
DELIVERED AT:
Brisbane
HEARING DATE:
23 July 2010, 12 – 13 August 2010
JUDGE:
Rackemann DCJ
ORDER:
The respondent pay the appellant’s costs of and incidental to the appearances on 12 and 13 August 2010 on an indemnity basis. The appellant’s application for costs is otherwise dismissed.
CATCHWORDS:
PLANNING AND ENVIRONMENT – Application for costs – whether frivolous or vexatious – whether respondent failed to properly discharge its responsibilities in the proceedings
COUNSEL:
Mr Dunning SC and Mr Lyons for the appellant
Mr Labone for the respondent
SOLICITORS:
Robinson and Robinson solicitors for the appellant
Department of Environment and Resource Management for the respondent
The appellant (SO) seeks its costs of this appeal against the respondent’s (DERM) refusal, in part, of its request to vary a condition of a permit, pursuant to which SO operates an environmentally relevant activity (ERA 53 – Soil Condition and Manufacturing). It seeks costs on an indemnity basis.
The usual rule, in this court, is that each party bears its own costs. The statute[1] does however, provide for a limited range of circumstances in which the court has a discretion to make a costs order. The appellant contends that the court’s jurisdiction is enlivened in this case because:
· The respondent’s defence of the proceeding was frivolous or vexatious;
· The respondent, as assessment manager, did not properly discharge its responsibilities in the proceeding.
[1] Pursuant to s 819 of the Sustainable Planning Act (2009), the appeal is decided under the IPA. The costs provisions for the IPA are in s 4.1.23.
The relevant condition (Condition W16), sets limits for various chemicals in products derived from composting. The limits included the following:
PCBs (mg/kg) 0.02
BTEX (mg/kg) not detected
TPH (mg/kg) 1
TPH refers to total petroleum hydrocarbons. This is a group of carbon based chemicals that are the constituents of crude oil. The chemicals can be classified into four groups (called fractions) according to the number of carbon atoms in the individual components. The relevant fractions are:
C6-C9
C10-C14
C15-C28
C29-C36
The total TPH level is the sum of each of the individual fractions.
Before the TPH limit was imposed, the applicant was informed of the proposed conditions for the permit and raised no objection to the TPH limit. The applicant did not appeal against the imposition of Condition W16. Mr Ferguson, a director of SO, says that was an oversight.
In May 2009 SO gave DERM a laboratory analysis for finished compost product which was sampled on 20 April 2009. The sample did not contain results for BTEX or TPH. Between 1 June 2009 and 11 September 2009 DERM sought further information and sampling results from the applicant. On 18 September 2009 DERM received further information on sampling results from the applicant showing, amongst other things, that TPH and BTEX measurements did not comply with the approved limits.
On 29 October 2009 DERM issued an Environmental Protection Order (EPO) to SO in order to secure compliance with the permit, including with Condition W16. On 12 November 2009 SO applied for a review of the decision by DERM to issue the EPO.
On 25 November 2009 the applicant applied to change the PCB, BTEX and TPH limits imposed by Condition W16 as follows:
· PCB not detected (at a detection limit of 0.02 mg/kg)
· BTEX not detected (at a detection limit of 0.5 mg/kg)
· TH -2002 mg/kg
Sometime prior to 26 November 2009, both Mr Ameer, who was responsible for carrying out the internal review of the EPO, and Ms Cramp, who had the day-to-day carriage of the application to vary the condition, saw an advice from Mr O’Brien, who is the chief scientific advisor employed by DERM. That advice included the following (my underlining):
“SO request/application for consideration of change to contaminant levels:
There are 2 arguments here.
1) Limit of detection. SO have an argument as appears licence limit for TPH was incorrectly set below limit of detection and that no more sensitive analysis can achieve. Where limit of detection can be reached, then this should be applied (where it is above current limits). From the reported prices, I don’t consider these to be excessive. The price for PCB can be covered in a combined analysis (which they have to do under their conditions anyway and have not applied for a change).
2) If SO wish to change condition to something other than the limit of detection as indicated in the table below.
Internal advice on limit changes:
…
Levels stated by SO for TPH are for contaminated land investigations – I don’t think DERM should be supporting contamination of land up to this level (this is only my opinion – Nadine). I would have thought a level below this would be more appropriate – ie. limit of detection.
If SO wish to pursue increase in the levels above limit of detection, I believe they should provide the following information for DERM to consider any changes:
- What wastes and generators are the BTEX, TPH and PCB inputs coming from?
- What processes are they being generated from?
- What benefit does adding these to the compost give? (ie. seems to be waste disposal opportunity rather than making a soil conditioner)
- What are the incoming levels from these various inputs?
- Provide a scientific justification that the Rotocom composting process actually has an impact on the reduction of contaminants, not including through dilution.
Further-
SO refer to the use of bioremediation technique in their application for change of condition. The limit SO have proposed for TPH is (2200). When SO applied for their DA and Reg Cert. their consultant Luke Zambelli made it clear that SO were also looking to treat/bioremediate soils. At that time bioremediation of soil was not an ERA and there was no way of regulating it beyond GED. However, last year, definitions changed and now is covered by ERA 58. (ERA 58 is 90 - $18,000 from AES score). SO should also be made aware of this when a formal response on this issue is provided.
Summary of what has been found to date:
All in mg/kg
Current SO licence
SO want changed to
Sciences advice on limit of detection
EAL/Labmark (NATA accredited for these tests)
Example cost (EAL)
PCB
0.03
0.2
<0.2
<0.1
Can be <0.01 and incurs a 100% surcharge due to matrix interferences
$60.50 (covers OC’s etc)
$121
TPH
1
2200
<50
C6 – C9 <10
C10 – C14 <50
C15 – C28 <100
C29 – C36 <100
(combined in with BTEX $88)
BTEX
1
0.5 (for each component)
<0.5
Benzene <0.2
Toluene <0.5
Ethylbenzene <0.5
meta- and para- Xylene <1
ortho-Xylene <0.5
As above”
On 26 November 2009, Mr Ameer made a decision on the application to review the issue of the EPO. For the purposes of the EPO, he set limits for the following TPH fractions, consistent with the advice of Mr O’Brien:
· C6-C9 10 milligrams per kilogram
· C10-C14 50 milligrams per kilogram
· C16-28 100 milligrams per kilogram
· C29-C36 100 milligrams per kilogram
On 16 December 2009 DERM also offered to agree to change the TPH limit in Condition W16 to the same limits for the various fractions referred to in the decision of Mr Ameer. SO’s expert, however, continued to contend for the 2200 mg/kg limit proposed by SO.
On 23 December 2009 DERM approved changes to the PCB and BTX limits, essentially in line with SO’s application, but did not approve any change to the TPH limit. The subject appeal was then filed on 18 January 2010.
On 28 January 2010 SO filed an application in pending proceeding seeking, in effect, to have the TPH limit changed pending a determination of the appeal. The application was supported by an affidavit of Mr Ferguson, who complained that it was impossible to operate the business in compliance with the condition as it stood. Accordingly it was impossible for SO to even sell a substantial amount of finished product at its plant. That has obvious financial consequences.
The resolution of interesting questions of jurisdiction and discretion was rendered unnecessary when SO decided not to press its application in light of an undertaking by DERM on 8 March 2010, to exercise its powers under s 73C(3) of the Environmental Protection Act (1994) to change Condition W16 so as to adopt the limits which it had offered on 16 December 2009 and which appeared in Mr Ameer’s decision on the EPO.
By order of 8 March 2010 the remaining issue in dispute in the proceedings was then identified as:
“Whether a TPH limit should be imposed as a condition of the development approval, the subject of these proceedings and, if so, at what limit or limits and upon what terms”.
In accordance with the usual procedure in this court, directions were made for the experts to meet and to produce a joint report. After some delay, two experts’ joint reports were completed on 26 May 2010. One was by experts in human toxicology and another by experts on the protection of ecology.
As is not uncommon, the joint reports revealed that the experts had reached agreement about their professional views. The report focussed upon the individual fractions of TPH, rather than the aggregate level per se.
At the meeting of experts, it was agreed that the TPH screening test did have limitations in providing a precise measurement of TPH of petroleum origin in compost. It was further agreed that another TPH component, polycyclic aromatic hydrocarbons (PAHs), contained toxic materials including carcinogenic components and that this component could be more accurately measured as a separate chemical analysis.
Consequently, it was agreed by the experts that the addition of a limit for PAH expressed as Total PAH of 20mg/kg and the specific carcinogenic BaP TPE (benxo[a]pyrene total potency equivalent) of 1 mg/kg as additional measurements of quality characteristics for the compost would provide adequate human health protection. The identification and separate measurement of the toxic PAH components then enabled a higher level of TPH to be specified. As Mr O’Brien explained:
“This addition significantly alters the licence quality limits for compost and includes additional conditions relating to use of silicia gel cleanup and testing procedures for TPH. The identification and separate measurement of the toxic PAH components enable higher levels of TPH to be applied.”
The experts agreed that the approved limit of BTEX was sufficient to deal with the risks associated with the C6-C9 fraction and that the following limits for the other fractions would otherwise provide protection for the TPH group of compounds:
·C10-14 150 milligrams per kilogram
·C15-C28 300 milligrams per kilogram
·C29-C36 2800 milligrams per kilogram
Mr O’Brien, explained in his affidavit:
“The revised limits for TPH and the additional limits for PAH and B[a]P TPE provide a more accurate evaluation that TPH of petroleum origin is not being used as compost feedstock. The nature of TPH testing procedures does not allow precise discrimination between hydrocarbon material of plant and manure origin and those of petroleum origin. While the levels of TPH are higher than the current licence, the nature of the composting process is such that the measured TPH has a greater likelihood of being of plant origin provided the PAH and B[a]P TPE levels are not exceeded.”
Their recommendations could result in a total TPH level exceeding even the limit SO had contended for, but whether it did so or not would depend upon compliance with the levels for the various fractions as well as for the additional limits for PAH and B[a]P TPE. It is therefore not correct to say that SO achieved a better result than it sought in the proceedings. The structure of that agreed to by the experts in their joint report is different. Indeed the failure of SO to have specified levels for various fractions was one of the stated reasons why the application to vary the TPA limit to 2200 mg/kg was refused (see para (j) of the reasons).
Within days of receiving the experts’ joint report, the solicitor for DERM wrote to the solicitor for SO proposing that the proceedings be resolved by consent orders. Accordingly, the matter did not proceed to a full hearing.
Leaving to one side certain aspects of DERM’s defence of this costs application (dealt with later), DERM’s conduct in the litigation, viewed in isolation, does not have the hallmarks of frivolousness or vexatiousness or of a failure to discharge responsibilities.
Senior counsel for the applicant submitted that DERM’s defence of the proceedings must be viewed in the context of its conduct in dealing with his client’s application at first instance. It was contended that the context revealed an unwillingness, at any point up until it was forced to do so by the court ordered joint expert meeting and report process, to discharge its responsibility to properly assess the appropriate TPH limit. Further, it was contended that its conduct, viewed in context, revealed both bias and an abuse of the court process. Accordingly, it is necessary to examine the way in which DERM dealt with SO’s request to vary the condition.
DERM was criticized for deciding not to vary the TPH level from 1 mg/kg when Mr O’Brien had advised that it appeared that the “licence limit for TPH was incorrectly set below limit of detection,” and even though DERM had offered, just a week prior to its decision, to amend the limit, by agreement, to correspond with the review decision which Mr Ameer had made with respect to the EPO.
As senior counsel for SO conceded, there would still have been an appeal to this court even had DERM adopted the levels from Mr Ameer’s decision. So much is confirmed by the fact that this proceeding continued even after DERM subsequently exercised its power under s 73C(3) of the EPA, to change the condition in that way. It was submitted however, that leaving the level unchanged when making its decision on 23 December 2009, exemplified DERM’s inappropriate approach to SO and its application. It was also said that DERM must have know, from the commencement of the litigation, that it had no prospects of defending 1 mg/kg.
It was submitted, on behalf of DERM, that it had not been proved that 1 mg/kg was, in fact, below the limit of detection. It was pointed out that DERM received further subsequent information which suggested that the limit of detection was less than had previously been thought. That may be relevant to any decision thereafter to defend a certain limit, but it is no answer to the criticism of what DERM decided at the time it thought the limit of detection was as per Mr Ameer’s decision.
There are a number of mechanisms for conditions to be varied. One is contained in s 73C(3) of the EPA which permits the administering authority to add, change or cancel a condition if the registered operator of the approval has agreed in writing. That is the power which was used to change the condition in response to SO’s application in pending proceedings. It also appears to be the power which would have been used had DERM’s offer of 16 December 2009 been accepted.
Another mechanism to change conditions, at the relevant time, was in response to a request under s 3.5.33 of the Integrated Planning Act, which is the section invoked by SO’s application. It was only available however, where no assessable development would arise from the change.
SO’s application was decided by Ms Deena Murray, as the duly authorized delegate. Ms Murray held the view that the variation sought to the TPH limit would cause assessable development to arise. She held the view that, absent an agreement sufficient to invoke s 73C(3), she had no power to change the TPH limit at all.
Her view, as to assessable development, is revealed in paragraph (8) of her reasons as follows:
“(a) the proposed limits for total petroleum hydrocarbon (TPH) have been based on undertaking activities which I consider to be assessable development.
The application stated ‘the SBMP nominated quality characteristics for total petroleum hydrocarbons (TPH) and monocyclic aeromatic hydrocarbons (MAH) on the basis that Sustainable Organics planned to provide a bioremediation service for hydro-contaminated water and soil. The TPH and MAH characteristics were proposed to evaluate the efficiency of bioremediation – when no hydrocarbon contaminated materials were used in compost, it is expected that these characteristics will be essentially at background levels.
Sustainable Organics (Whooshaway) Pty Ltd currently hold an environmentally relevant activity (ERA) development approval for soil conditioner manufacture. Please be aware that Schedule 2 of the Environmental Protection Regulation2008 (which took effect on 1 January 2009 replacing the Environmental Protection Regulation 1998 for ERA 58 regulated waste treatment, states:
(i) Regulated waste treatment (the relevant activity) consists of operating a facility for receiving and treating regulated waste or contaminated soil to render the waste or soil non hazardous or less hazardous
…Accordingly, should you wish to undertake any activity which requires development approval for regulated waste treatment (including bioremediation of soil), you must apply for a material change of use and obtain a development approval under the Sustainable Planning Act 2009. This is considered new assessable development and would not be processed under a change of condition.”
In short the delegate thought that SO was proposing a change to the TPH level so that it could carry out bioremediation of soil, rather than just the composting operation for which it had a permit.
The SBMP, to which reference was made, was lodged in support of SO’s application for a permit for ERA 53. That SBMP proposed not only the composting of various materials, but also the receipt of hydrocarbon contaminated waters and hydrocarbon contaminated soil for bioremediation. It proposed quality characteristic limits for bioremediation which included maximum allowable limits for the various TBH fractions totalling, in aggregate, 2,200 milligrams per kilogram. SO was not successful in obtaining approval for bioremediation.
While SO’s application to vary Condition W16 sought to change the TPH limit to 2,200 milligrams per kilogram, it was a mistake to think that this was for the purpose of allowing them to conduct bioremediation. The material clearly demonstrated that the request was simply to apply the same aggregate TPH limit to the composting operation.
The original source of this confusion might have been Mr O’Brien’s advice, prior to the decision on the application, where he said, in part, that:
“SO refer to the use of bioremediation technique in their application for change of condition. The limit SO have proposed for TPH is (2200). When SO applied for their DA and Reg Cert. their consultant Luke Zambelli made it clear that SO were also looking to treat/bioremediate soils. At that time bioremediation of soil was not an ERA and there was no way of regulating it beyond GED. However, last year, definitions changed and now is covered by ERA 58. (ERA 58 is 90 - $18,000 from AES score). SO should also be made aware of this when a formal response on this issue is provided.”
Whatever the source, the view which Ms Murray held was demonstrably wrong.
There was another reason why Ms Murray thought that she could not amend the condition to be consistent with Mr Ameer’s decision on the EPO. She thought that her power was either to approve the variation sought by the SO, to refuse it, or to amend it to something else by agreement under s 73C(3). She thought that, absent agreement, she had no power to alter the condition to something other than that sought in the application. In cross examination she admitted that the wording of the other changes made, when approving the application in part, did not precisely follow the wording of the application, but did not see those variations as of substance.
I can understand why Ms Murray would think that it would be inappropriate to seize on an application for an increased limit as an opportunity to, for example, make a decision which further reduced the limit. It is less obvious why she would think it was beyond her power to approve an increase to the limit albeit not to the extent sought in the application.
In any event, I accept that her views were genuinely held and that her failure to amend the condition, at least so that the levels were consistent with Mr Ameer’s decision on the review of the EPO, does not indicate a want of conscientiousness in discharging her responsibility as decision maker.
The fact that the unchanged level was then thought to be below the level of detection, does not reflect adversely on Ms Murray’s motives, given that:
(a) an offer was made to amend the condition by agreement pursuant to s 73C(3); and
(b) she conscientiously believed that she had no power to amend the limit otherwise.
Similarly, that other operators might not have had the same limit applied does not, in and of itself, establish that SO was “singled out” inappropriately. One would have to know more about why the limit was applied in this case, when it had not been in others. Further, the material shows that there was one other operator which had the same TPH limit applied to its permit.
It was contended, on behalf of the appellant, that:
“… DERM persisted with requiring the limit of TPH to remain at 1 milligram per kilo for the collateral and ulterior purpose of attempting to have certain receivables removed from the approved receivables of Sustainable Organics under the permit. DERM’s defence was thus at all times an abuse of process and contrary to the model litigant principles”.
Attention was focussed upon an email from Nadine Cramp of 26 February 2010, which post-dated the institution of this appeal. The email headed “Re: Sustainable Organics – Alternative Conditions” said, in part, as follows:
“I have also talked to Greg O’Brien about this, and it would be a good outcome if hydrocarbon contaminated waters was removed from their waste acceptance criteria. I think it would also be beneficial to tighten up the condition as SO have indicated so that they see the list (Item S below in particular) as an example only, rather than as an exclusive list”.
Condition W3 lists the waste materials permitted to be accepted for composting. They include hydrocarbon contaminated waters.
That email was in response to one received from Matthew Peate, a senior lawyer within DERM. Mr Peate’s email was sent in the context of a then unresolved application in pending proceeding by SO seeking an interim change to condition, pending a determination of the matter given, amongst other things, its inability to comply with a limit of 1 mg/kg and the financial consequences of it continuing to be the subject to that limit.
DERM was not content (and never has been content) simply to change the TPH limit to 2,200 milligrams per kilogram as SO sought.[2] In that context, Mr Peate sought instructions on what “alternatives” he could offer to SO, in particular he sought instructions as to whether he could offer the following:
[2] Indeed experts did not adopt that approach in their joint report.
(1)Amend limits to that which we previously proposed … or;
(2)Remove TPH from Condition W16, but also remove “oily waters” as a substance allowed to be accepted …”
In relation to the second option he also sought instructions as to whether there other related conditions which would also need to be amended.
Following Ms Cramp’s response, Mr O’Brien suggested other changes which he would like to see, but Ms Cramp responded that, while she agreed, “I think to try and change it may be outside the scope of this appeal process.”
Viewed in context, I do not consider that there is anything sinister about Mr Peate seeking instructions about the two alternatives in his email or in Ms Cramp endorsing the second as a “good outcome” and suggesting some other amendments. At that stage there was no common ground on what an appropriate TPH level was. The removal of hydrocarbon contaminated waters, if so agreed, would have obviated the concern about TPH. Alternatively, limits could be changed from 1 mg/kg to something that DERM were then comfortable with (i.e. levels previously offered) as an interim measure. There is no sufficient basis to conclude that DERM was acting belligerently in an attempt to persuade SO to remove oily waters from the waste stream. Indeed an interim increase of the limit was the option which was ultimately put into effect, pursuant to the undertaking which DERM gave to the court.
Ms Murray was also cross-examined about this as follows:
“And I suggest to you that you chose to leave the limit below what you understood to be the limit of detection because that would effectively prevent them from being able to take in that waste stream; that was right, wasn’t it?
No, certainly not.
And the negotiations that you’ve talked so often about were really the negotiations that you were trying to promote by effectively saying to Sustainable Organics, “I won’t lift it from 1 unless you agree to a figure much lower then 2200”?
Without supporting information that was our position, yes, but we were open to expecting further information and negotiating a different limit through the correct channels.”
As Mr Dunning SC pointed out, Ms Murray was not the perfect witness. For example, her answers were, at times, less than responsive. I did not form the view, however, that she was dishonest and I accept that her decision was not motivated by the collateral purpose suggested. I am also not persuaded that DERM’s defence of the proceedings was for a collateral and ulterior purpose.
DERM was also criticized for basing its offer of amended limits on what was thought to be the limit of detection rather than, necessarily, on what would be a practical and safe limit. It was plain that, for the reasons which Ms Murray gave, she was not satisfied that the limit sought by SO was appropriate. In paragraph C of her reasons, for example, she said:
“Insufficient evidence has been provided in support of the proposed changes to TPH limits. It has not been adequately demonstrated that contaminants will not be present at levels of concern, and that the levels proposed do not pose an unreasonable increase in the potential risk of environmental harm”.
This conclusion was sufficient to justify a refusal of the requested variation, even putting to one side the jurisdiction impediments which she thought she had.
It was submitted that, given his ultimate agreement to a higher limit, in the joint expert report, Mr O’Brien could have been expected to support a higher limit if he had been more fully and properly consulted at an earlier time. Subsequent to the institution of this appeal, however, he swore an affidavit in which he opined that:
“… [T]he removal of TPH to below levels of recording (LOR), which is effectively the limit of detection of the chemical that is essential to manage the environmental risks posed of TPH.”
On 2 March he swore another affidavit in which he said:
“I have reviewed the affidavit of Peter Morris Nimmo of 2 February 2010 and associated materials and given consideration to issues raised regarding levels of total petroleum hydrocarbons (TPH) that DERM seeks to apply in final compost products produced by SO. Respectfully, I do not consider the issues raised regarding these levels and the information presented to support the alternative elevated levels of TPH proposed by SO are on an adequate scientific basis to protect human health and the environment”.
It is true that the experts ultimately reached a different agreed position, but that is not an uncommon consequence of the expert meeting process, as practised in this court. It should not be thought that a change of position in consultation with a professional colleague signifies a want of professionalism, or worse, prior to that consultation.
DERM was criticized for failing to go on to examine whether some level above the level of detection would be appropriate. Assuming DERM had an obligation to do so, it is evident that, if it acted consistently with the views of Mr O’Brien, it would then have concluded that the limit of detection was the appropriate level.
The decision making process before DERM was far from perfect. It was characterised by, amongst other things, assumptions about SO’s proposal which were demonstrably false, wrong assumptions by Ms Murray that the original levels were specifically proposed or agreed to by SO, an obvious level of suspicion about SO, and mistakes about jurisdiction. I do not, however, consider that DERM’s consideration and decision on the application provides a basis for concluding that its subsequent conduct in responding to this appeal was marked by frivolousness, vexatiousness or failure to discharge its responsibilities.
An appropriate solution may have been arrived at earlier had things been dealt with differently. In particular, it would have been better had the experts from either side got together at the time the application was being considered by DERM, or at an earlier time in the appeal process. I am unpersuaded however, that DERM’s conduct in the appeal, even viewed in the context of its assessment and decision on SO’s application, enlivens the court’s jurisdiction or would persuade me to exercise my discretion to make an order in any event.
The above conclusion is subject to an exception insofar as DERM’s defence of this costs application is concerned.
This application for costs was set down to be heard on 23 July 2010. Argument ought to have been concluded on that day. Instead, it proceeded over two further days on 12 and 13 August. That included oral evidence by Ms Deena Murray on 12 August 2010. The extra time, and associated costs, was due to counsel for the respondent advancing contentions and making submissions which were without foundation.
On 23 July 2010 counsel for the respondent contended that:
(1)the request to change the TPH limit was only ever made pursuant to s 73C(3). SO did not make an application pursuant to s 3.5.33 to change the TPH limits[3];
(2)assessable development would arise from the change.
[3] T1-25 to 26.
The first of those issues had never previously been raised. In particular, it was a jurisdictional issue not raised at the time the remaining issue in dispute was identified by the court’s order of 8 March 2010. The hearing of the costs application was adjourned to enable those contentions to be addressed.
The contention that there was never an application, pursuant to s 3.5.33, to change the TPH limits was demonstrably wrong on the face of the relevant material. Counsel for the respondent abandoned that contention at the resumed hearing on 12 August 2010. There was never a proper basis to assert it.
At the resumed hearing senior counsel for the appellant demonstrated, by reference to the material, why Ms Deena Murray had been wrong to think that SO was seeking a different level for TPH in order to carry out bioremediation. In response, counsel for DERM informed the court that he had taken specific instructions to the effect that the assessable development which would, it was thought, arise from a change to the TPH limit, was not bioremediation of soil but rather the receipt of hydrocarbon contaminated waters at levels which now come within the description of processing regulated waste[4].
[4] T2-42 to 44.
In order to make good that assertion, Ms Murray was ultimately called to give evidence and to be cross-examined. In her evidence in chief Ms Murray clearly confirmed that her concern about assessable development arising was due to her understanding that SO wanted to bioremediate soil. She was given more than one opportunity, in the course of examination in chief, to depart from that evidence, but she remained consistent. Further, she confirmed that receipt of oily water was not the basis upon which she considered assessable development arose, because she understood that Condition W3 already allowed for that[5] . Accordingly, as she said:
“No, I thought it just confirmed that the assessable development under ERA 58 refers quite complete (sic) to regulated waste treatment and full remediation and it was the remediation of contaminated soil that would have triggered the assessable development not hydrocarbon contaminated water which they can, clearly, accept …”[6]
[5] T2-52.
[6] T2-53.
It is not only disappointing, but unacceptable, for a litigant such as DERM to make submissions to the court, through its counsel, which are plainly wrong, have no foundation and could not have been subject to any appropriate investigation. There is no reason to think that Ms Murray would not have said the same things to those who instructed DERM’s counsel, had she been asked. Had she been asked, then presumably DERM’s counsel would not have been given specific, but wrong, instructions and time would not have been wasted.
In my view, those parts of DERM’s case were at least frivolous (if not also within other limbs of the costs power), and warrants, as a matter of discretion, making a costs order and indeed a costs order on an indemnity basis.
But for that aspect of the case, the costs argument would have required only one day. I order that the respondent pay the appellant’s costs of and incidental to the appearances on 12 and 13 August 2010 on an indemnity basis.
The appellant’s application for costs is otherwise dismissed.
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