Tarkine National Coalition Inc v Schaap - [2014] TASSC 66

[2014] TASSC 66

COURT: SUPREME COURT OF TASMANIA

CITATION: Tarkine National Coalition Inc v Schaap [2014] TASSC 66

PARTIES:  TARKINE NATIONAL COALITION INC
  v
  SCHAAP, Alex,

DIRECTOR, ENVIRONMENT PROTECTION AUTHORITY
ATTORNEY-GENERAL, The Hon Dr Vanessa Goodwin

FILE NO:  665/2014
DELIVERED ON:  17 December 2014
DELIVERED AT:  Hobart
HEARING DATES:  11, 12 December 2014
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Administrative Law – Judicial Review – Reviewable decisions and conduct – Decisions under an enactment – Particular cases – Director of Environmental Protection Authority – Decision [not] to issue Environment Protection Notice.

Judicial Review Act2000 (Tas), s 17(2).
Aus Dig Administrative Law [1013]

Environment and Planning – Environmental planning – Development control – Consents, approvals and permits – Modification – Generally – Whether development authorised by permit fundamentally changed by Environment Protection Notice.

Environmental Management and Pollution Control Act 1994 (Tas), ss 3(2), 44(10).
Land Use Planning and Approvals Act 1993 (Tas), s 3(1).
Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280, considered.

Aus Dig Environment and Planning [240]

REPRESENTATION:

Counsel:
             Applicant:  J Gobbo QC and J Forsyth
             Respondent:  M E O'Farrell SC and J Rudolf
Solicitors:
             Applicant:  Environmental Defenders Office (Tas) Inc
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2014] TASSC 66
Number of paragraphs: 72

Serial No 66/2014
File No 665/2014

TARKINE NATIONAL COALITION INC v ALEX SCHAAP, DIRECTOR, ENVIRONMENT PROTECTION AUTHORITY and ATTORNEY-GENERAL,
THE HON DR VANESSA GOODWIN

REASONS FOR JUDGMENT ESTCOURT J

17 December 2014

The Tarkine National Coalition Inc has applied for orders pursuant to s 17 of the Judicial Review Act 2000 (the JR Act) setting aside as invalid an Environment Protection Notice No 8977/1 (the EPN) issued by the Director of the Environment Protection Authority (the Director) pursuant to s 44 of the Environmental Management and Pollution Control Act 1994 (the EMPC Act).
The following summary of the rather complex factual background to the application is based (gratefully) upon the outline set out in the applicant's written submissions. Except where I have indicated otherwise I am satisfied that the facts and matters summarised are made out on the documents provided to me by the parties in the Court Books.
In or about early December 2011, Shree Minerals Limited (Shree) lodged an application with the Circular Head Council (the Council) for a development approval for the Nelson Bay River Magnetite Mine (the Mine). In summary, the application was for the development and use of a new magnetite and hematite open cut mine and processing activities. The proposal was described in a Development Proposal and Environmental Management Plan (the DPEMP), which was submitted to the Council with the application.
The proposal was defined as a level 2 activity under Sch 2, s (2)(e), of the EMPC Act, being "Mineral Works: the conduct of works for processing mineral ores, sands or earths processing 1,000 tonnes or more per year of raw materials".
Section 25(1) of the EMPC Act required the Council to refer the application to the Board of the Environmental Protection Authority (the EPA Board) for assessment under the EMPC Act due to it being a permissible level 2 activity. The application was received by the EPA Board on 7 December 2011.
The DPEMP provided the following relevant information about the Mine:
a)The magnetite ore body will be extracted by developing a pit (Main Pit) to a depth of approximately 225 m. The ore will be beneficiated in an on-site processing plant prior to road transport to the port of Burnie (or Port Latta) on the north coast of Tasmania.
b)In addition to the Main Pit, there is also an extended near-surface oxidised ore body, comprising direct shipping quality hematite (DSO). This ore will be extracted by shallow excavation (the DSO Pit) to a depth of approximately 40 m, and transported directly to port, with the only beneficiation likely to be crushing and screening.
c) Mining of the DSO Pit will commence before mining of the Main Pit.
d)Some of the waste rock will contain pyritic material and is therefore potentially acid forming (PAF).
e)PAF rock will be disposed of in the DSO Pit in an encapsulated cell, and temporarily above the DSO Pit if the DSO void becomes full. On mine closure, any PAF material above the DSO Pit will be relocated into the Main Pit.
f)On mine closure all PAF rock will be submerged under a permanent cover of water (whether in the DSO Pit or in the Main Pit), thereby providing permanent protection against acid generation.
The main environmental management issue resulting from the PAF waste rock is the generation of acidic water which, due its pH, can contain metals toxic to the environment. Due to the proximity of the Nelson Bay River and its tributaries (East and West Creek), the water quality objectives for the Mine were to ensure that the protected environmental values (protection of pristine or nearly pristine ecosystem) of Nelson Bay River were not compromised. The strategy in the DPEMP to manage discharge from the site was to isolate PAF material in the DSO Pit where it would be covered to minimise oxidation and eventually flooded.
The DPEMP sets out a number of options for dealing with PAF rock during the Mine's operations, depending upon the "actual PAF quantities". Commitments 29 and 30 of the DPEMP (which subsequently were modified and became commitments 38 and 40) proposed storage of PAF material inside, and above, the DSO Pit.
The DPEMP included a series of plans showing the main components of the Mine at various stages of its life. The plans show, relevantly, both the DSO Pit and the Main Pit and the waste rock dump. They also contain cross-sections of the DSO Pit (with a depth of approximately 40 m, but described in the DPEMP and Supplements as potentially extending to 60 m) and the Main Pit.
During the assessment process, the Director corresponded with Shree about the proposed Mine, and in particular about the management of PAF material. In particular:
a)The Director asked Shree's environmental consultant in an email dated 29 May 2012, "what will happen to the PAF out of the DSO Pit while the pit is in operation if there is too much too [sic] keep within the pit during operations?"
b)The EPA assessing officer, raised concerns with the Director that, among other things, the PAF material was in excess of the capacity of the DSO Pit.
c)Further information was provided by Shree regarding the staging of mining, and in particular stages 1 and 2 were described in a letter from Shree to the EPA dated 17 February 2014.
d)The Director suggested to Shree in a letter dated 29 February 2012 that it only proceed with seeking approval of stage 1 of the mine and submit a separate proposal for stage 2 when Shree's plans for processing the ore and the characterisation of the PAF material was better understood.
In response to requests for further information, Shree submitted Supplements 1-4 of the DPEMP.
Supplement 1 stated that concerns about uncertainties in the volume of PAF rock could be "dealt with simply by a permit condition that prevents storage of PAF waste rock above the level of the DSO pit unless and until a management plan for that excess storage has been prepared to the satisfaction of the Director".
Supplement 1 also defined stages 1 and 2 of the Mine. In particular, stage 1 involves initial construction activities, mining of the DSO Pit and also the mining of the upper portions of the magnetite ore body from the Main pit (the Beneficiable Oxide Ore (BFO)).
Supplement 3 responded, among other things, to the Director's requests for further information about the capacity of the DSO Pit to manage PAF material and stated that "there will always be ample space for storing PAF waste rock … For DSO PAF waste rock the available void space is therefore more than 30 times greater than what is required …".
Supplement 3 referred to a "post-DPEMP commitment to store all PAF waste rock inside the pit, with no temporary dump outside as was proposed by the DPEMP". Supplement 3 described the process of dealing with PAF waste rock inside the DSO Pit, including the potential to create a drop cut extension with potential dimensions provided to deal with a maximum of 25,000 m³ bulked-up PAF waste rock.
Supplement 3 responded to the Director's request that Shree confirmed its acceptance of the implications of a conditional approval that would limit the storage of PAF waste rock to inside the DSO Pit. Shree also confirmed its previous advice to the EPA which called for a process for approval by the Director for above ground storage of PAF material.
In or about July 2012 the EPA Board assessed the proposed Mine under the EMPC Act and wrote a report titled "Environmental Assessment Report" (the EAR).
Relevant findings of the EPA Board were:
a)The key issues for assessment were the inter-related ones of acid and dissolved metal levels in drainage from various sources both during mine operations and, particularly, post-closure, all of which are influenced by the volume of PAF material to be excavated. (Emphasis added.)
b)The EPA Division had concerns about the preconditions that would need to be met for the PAF material isolation strategy in the DPEMP to be viable, including that "there is very little spare space on the mine site, … to say nothing of the other issues arising from long-term above-ground storage of PAF".
c)To manage the risk of acid mine drainage during the operation of the mine and into the long-term, post-closure, all PAF material must be stored in the DSO Pit, since this appears to be the only secure, long-term storage option. Permit condition OP2 as originally imposed by the EPA Board reflected that requirement. (Emphasis added.)
d)Permanent underwater storage was the only acceptable solution for PAF material which has to remain on the site indefinitely.
e)The volume of waste rock that would need to be treated as PAF might be substantially higher than the estimate in the DPEMP.
f)It was likely that the project would run out of PAF material storage volume in the DSO Pit before mining of the Main Pit was completed, and that mining was to cease once the storage space in the DSO Pit was exhausted.
g)The proponent had stated that it was supportive of a permit condition which did not allow storage of PAF material elsewhere (either above the ultimate flood level of the DSO pit or elsewhere on the site), unless approval from the Director was given. The proposed permit condition (OP2-1) does not provide Directorial discretion to approve storage of PAF material elsewhere than in the DSO Pit as it was considered unlikely that an appropriate alternative strategy was available or feasible. (Emphasis added.)
On or about 26 July 2012, the EPA Board issued "Permit Part B Permit Conditions – Environmental No 8568" (the original Part B Permit Conditions). Of relevance to the present application are the definitions of DSO Pit and conditions G1, G4, G7, CN5 and OP2 of the original Part B Permit Conditions. The original Part B Permit Conditions also contain a list of "commitments". Of relevance to the application is commitment 38.
The original Part B Permit Conditions were included in planning permit DA 2011/00171 granted by Council on 16 August 2012, alternatively 8 February 2013 (the original Permit). On 12 April 2013, the original Permit was corrected (the Permit). The subject of the correction is not directly relevant to the present application. Of relevance to the application are conditions 1 and 10 of the Permit.
On or about 14 October 2013, the Director received the PAF Materials Separation & Verification Plan (version 4) (10 October 2013) (the PAF Materials Separation & Verification Plan). The PAF Materials Separation & Verification Plan showed a significant change in the quantity of PAF material expected to come out of the DSO Pit, revising the quantity of PAF waste rock from the DSO Pit from less than 14,000 m³ to 230,000 m³.
Shree stated in its "Addendum to the PAF Materials Separation & Verification Plan" dated 8 October 2013 that:
"the Southern DSO Pit is not available as a PAF storage location during the excavation of the pit",
and that:
"excavating the 'drop cut extension' as a direct extension of the Southern DSO pit to a holding capacity of 330,000 m3 beneath the final flood level of the pit is estimated to require an excavation of approximately 750,000 m³".
Shree proposed an "alternative", namely to:
"construct a temporary PAF storage facility above the final flood level of the Southern DSO Pit".
The location and size of the PAF storage dump is shown on Figure 1 of that document.
By letter dated 18 October 2013, the Director told Shree that he would be prepared to consider a proposal to vary the Permit conditions to allow temporary storage outside the DSO Pit for Stage 1 of the Mine, provided Shree could convince him that it was desirable to do so.
On 21 October 2013, Shree requested a change to the Permit conditions via the issue of an Environment Protection Notice under the EMPC Act.
On or about 29 October 2014, Shree produced the "Temporary PAF Storage Proposal – information to support Permit Variation V4 (29 October 2013)" (PAF Storage Proposal) which describes the proposed above ground PAF storage dump as being 1 ha in area.
The PAF Storage Proposal stated that:
a)the amount of PAF material to be excavated from the DSO Pit will be approximately 230,000 BCM rather than the 14,000 BCM predicted in the DPEMP;
b)allowing for swell and interim coverings this requires a storage capacity of ~330,000 cubic metres; and
c)excavating the drop cut as a direct extension of the DSO Pit to a holding capacity of 330,000 m³ beneath the final flood level of the Pit is estimated to require an excavation of at least 750,000 m³. An excavation of this size in advance of ore mining is not considered practicable.
The increased amount of PAF was stated to be a result of two factors:
a)A better understanding of the DSO resource showing it was "larger than originally thought. This will support a larger and deeper DSO pit".
b)A modification to the modelling approach resulting in "an increased proportion of waste rock [being] classified as PAF".
In summary therefore:
a) According to the DPEMP the total volume of the proposed DSO Pit was 858,000 m³.
b)According to the DPEMP, the estimate of PAF waste rock from the DSO Pit was less than 14,000 m³.
c)The DPEMP Supplement 3 described the drop cut extension as being potentially required to deal with a maximum of 25,000 m³ of PAF waste rock.
d)The Addendum to the PAF Materials Separation & Verification Plan revised the quantity of PAF waste rock from the DSO Pit from less than 14,000 m³ to 230,000 m³.
e)The Addendum to the PAF Materials Separation & Verification Plan said that the drop cut extension would need to be approximately 750,000 m³ in size to accommodate the PAF material from the DSO Pit.
On 8 November 2013, the Director issued Environment Protection Notice 8977/1 (the EPN) (the Decision).
The EPN purported to vary the conditions of the Permit pursuant to s 44(1)(d) of the EMPC Act on the ground that the Director was satisfied that it was desirable to vary the conditions of the Permit.
The requirements of the EPN comprise the conditions contained in Sch 2 of the EPN (the EPN Conditions). The EPN states that the EPN Conditions are to prevail over the terms of the Permit to the extent of any inconsistency. The EPN appears to only vary conditions OP2, G7 and M3 (noting that the Notice itself does not identify the conditions of the Permit which have been varied) as follows:
a)Condition G7 was varied to add the phrase "with the exception of commitments 38 and 39". Commitment 39 was the commitment to store all PAF waste rock in the DSO Pit and to not store any of it outside or above the ultimate flood level of the DSO Pit. Condition G7 removes the operation of that commitment.
b)Condition M3 had an additional clause added, namely cl 1.2, which states "ensure equipment must be maintained and operated in accordance with the manufacturer's specifications".
c)Condition OP2 (cl 1) was re-written to remove the requirement that all waste rock containing PAF must be contained within the DSO Pit. That requirement has been replaced by a condition which allows the PAF waste rock from the DSO Pit to be managed in a PAF storage dump outside the DSO Pit for a period of 30 months from the commencement of ore extraction.
On 27 June 2014, a statement of reasons for the Decision was provided to the applicant by the Director (the SoR).
The SoR stated, relevantly, that:
a)The EPA's concern about the PAF waste rock likely to be generated by the Main Pit was addressed by imposing a condition that provided that stage 2 of the development could not proceed until a feasibility study had been accepted by the Director. (I note that statement appears to contradict the EPA Board's EAR which stated that the Board's concerns about the PAF waste rock were addressed by imposing a condition (OP2) that required all PAF material to be stored in the DSO Pit).
b)The Director accepted Shree's assertion that mining the DSO Pit while maintaining storage of the larger than expected volume of waste rock within it would be less efficient than a less restricted mining operation.
c) The Director concluded that:
i)Maintenance of the existing requirement to maintain the PAF within the DSO Pit would necessarily result in the excavation of a considerably larger drop cut within the Pit and this would expand both the Pit footprint and the void volume.
ii)This in turn would require above ground storage of greater amounts of the non-acid forming rock excavated from the drop cut.
iii)This would see a post mine closure outcome of a larger disturbance area and greater topographic modification with a larger waste rock dump and a larger flooded pit.
d)The Director concluded that the post-mine closure outcomes would be entirely consistent with the outcomes envisaged by the EPA Board and expressed in its Environmental Assessment Report in that the long-term storage of PAF waste rock would be under water within the DSO Pit as the preferred means of managing the long-term risk of acidic and metalliferous drainage generation from PAF waste rock. (I observe that the EPA Board was also concerned with the inter-related risks of acid and dissolved metal levels during the operation of the mine and stated that "To manage the risk of acid mine drainage during the operation of the mine and into the long term, post closure, all PAF material must be stored in the DSO Pit, since this appears to be the only long-term storage option). (Emphasis added)
Ground 1 of the application for review contends that the Decision by the Director was not authorised by the enactment under which it was purported to be made (JR Act, s 17(2)(d)), in that it "purported to change the fundamental development authorised by the Permit".
Pursuant to s 44(10) of the EMPC Act the Director may only vary the conditions or restrictions of a permit if "the fundamental use or development authorised by the permit is not changed".
The Macquarie Dictionary Online defines "fundamental" as:
"fundamental
adjective 1 serving as, or being a component part of, a foundation or basis; basic; underlying: fundamental principles.
2 of or affecting the foundation or basis: a fundamental change.
3 essential; primary; original."

Ground 1 asserts that the effect of the purported variations to the Permit conditions is to enable above ground storage of PAF materials emanating from the DSO Pit (EPN Condition OP2) and to remove the restriction on PAF material emanating from the Main Pit entirely.
The applicant argues that the changes are fundamental to the development authorised by the Permit because:
a)the management of the storage of PAF material was the key issue, alternatively one of the key issues, assessed by the Board in approving the mine;
b)the Board expressly stated in the EAR that the proposed permit conditions did not provide Directorial discretion to approve storage of PAF material elsewhere than in the DSO Pit;
c)the variation fundamentally alters the physical works authorised by the Permit;
d)the variation fundamentally alters the environmental risks of the activity authorised by the Permit.
The learned Solicitor-General, Mr O'Farrell SC, submits that under the EMPC Act, s 3(2), and the Land Use Planning and Approvals Act 1993, s 3(1), the term "development" includes the construction or carrying out of works, and the term "works" includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil. Thus he accepts that excavation of a pit and the storage of waste material in it, is consistent with the definition of "works" and its ordinary meaning. It appears therefore to be common ground that it is only the issue of "development" and not "use" that arises for consideration in this case.
Mr O'Farrell notes that the particulars of ground 1 of the application for review allege that "the effect of the decision is to change the storage requirements" of the PAF material, and he argues that this change is not capable of being "fundamental" to the development as it was always necessary to store the PAF material. He submits that the variation to OP2 effects a change only to the "operational requirements" of the Mine and that the Director dealt with it on that basis.
For the reasons that follow I do not accept that submission.
Mr O'Farrell further argues that it is not correct to categorise the change as "fundamental to the use and/or development" (as the particulars do). The question is whether the use or development is fundamentally changed and the applicant's particulars (a), (b) and (d) do not address this issue. He contends that particular (c), that "the variation fundamentally alters the physical works authorised by the Permit", can only be an evaluative judgment, with which the Court should not interfere.
Mr O'Farrell's submission continues that the limit imposed by s 44(10) of the EMPC Act, relates only to the question of fundamental change of use or development and that question depends on an evaluative judgment. He argues that the Director was well aware of the boundary of s 44(10), and determined that the variation did not fundamentally change the use or development authorised by the Permit. Mr O'Farrell contends that the applicant's outline invites the Court to embark on a review of the merits of the case, and that evaluation, in an impermissible way.
As a footnote to his written submissions Mr O'Farrell adds that, in any case, it is not sustainable to characterise the additional works of the PAF dump as fundamental, as at up to 1 ha it will comprise less than 1% of the estimated disturbance footprint of the Mine of 152 has, which area includes a 70 hectare NAF dump. That of course is a purely quantitative observation.
I accept that pars (a), (b) and (d) of the applicant's particulars do not address the issue of whether the use or development is fundamentally changed, but I do not accept that a consideration of particular (c) (that the changes effected to the Permit by the EPN are fundamental to the development authorised by the Permit because the variation fundamentally alters the physical works authorised by the Permit), involves an impermissible review of an evaluative judgment that is somehow the exclusive province of the Director.
What is under review on the present application is the lawful validity of the Director's decision to issue the EPN containing the impugned conditions. The Director cannot, as a consequence of the provisions of s 44(10) of the EMPC Act, vary the conditions or restrictions of a permit in such a way that the fundamental use or development authorised by the Permit is changed. It follows that the question for my determination is whether the variations wrought by the EPN changed the use or development authorised by the Permit in a "fundamental" way. That question patently involves both a quantitative and qualitative evaluation and the extent of the changes to the physical works authorised by the EPN as compared to those authorised by the Permit form part of my consideration of the question.
The Director may take the view that the EPN did not vary the conditions or restrictions of the Permit in such a way that the fundamental use or development is changed, but that question is ultimately a question of whether the EPN meets the requirements of s 44 of the EMP Act, in particular s 44(10), and that is not a question beyond the reach of this Court. Great weight must be given to the Director's view, as the repository of power to make the decision challenged, particularly on the question of whether the EPN fundamentally changed the nature of the development. I have no fact finding role. Nonetheless senior counsel for the Director accepted that at a macro level I am clearly entitled to determine the question of whether there was a fundamental change to the development within the meaning of s 44(10) of the EMPC Act.
Nor do I regard the issues raised by particulars (a) and (b) of the application for review as wholly irrelevant. Whilst I accept Mr O'Farrell's submission that s 44 of the EMPC Act is a stand-alone provision, enabling the Director to issue an EPN, and that the provisions of s 44(1) depend on the satisfaction of the Director in respect of one of a number of alternative matters and not on a prior decision of the EPA Board, I apprehend that the considerations of the EPA Board in the EAR remain relevant to my comparative evaluation, particularly where it is apparent that no new material assuaging the Board's concerns had been provided to the Director by the Mine proponent.
As noted by counsel for the applicant, Mr Gobbo QC and Ms Forsyth in their written submissions, Bignold J observed in Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 at [56]:
"56 The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the development being compared in their proper contexts (including the circumstances in which the development consent was granted)."
That case involved the question of whether a "development" to which a planning consent as modified related was "substantially the same development" to which the development consent related. The words under consideration may be different but nonetheless, the observations of Bignold J as to the content of the comparative task are apposite to the present case.
In his SoR, the Director stated that he had regard to s 44(10) of the EMPC Act and was satisfied that the proposal involved short-term operational changes to the manner in which one type of waste was addressed from a minor part of the development, and he concluded that it did not alter the fundamental use or development.
I cannot agree.
To my mind that is a serious understatement of the nature and quality of the change to the development in all of the circumstances. It is all the more egregious given that the Director was a member of the EPA Board that set the conditions of the Permit refusing above ground storage of the PAF waste material and declining to give Directorial discretion on the issue of PAF storage.
Quantitatively the extent of the physical changes permitted by the variation of the Permit conditions by the EPN is, in my view, quite dramatic, even in the context of the total area of land involved as noted by Mr O'Farrell in his footnote and bearing in mind the potential life of the Mine.
According to the DPEMP, the estimate of PAF waste rock from the DSO Pit was less than 14,000 m³ and the DPEMP Supplement 3 described the drop cut extension as being potentially required to deal with a maximum of 25,000 m³ of PAF waste rock.
The Addendum to the PAF Materials Separation & Verification Plan revised the quantity of PAF waste rock from the DSO Pit from less than 14,000 m³ to 230,000m³. That is a revision from 37,000 tonnes to 620,000 (Emphasis added.)
As previously noted, one of the issues of concern for the EPA Board was that the volume of waste rock that would need to be treated as PAF might be substantially higher than the estimate in the DPEMP. Indeed it was.
The changes include an above ground PAF material storage area of over 1 ha in size. The dump will be 20 m in height. The dump will, during the extraction process of the DSO material, store a massive amount of PAF waste material in a way not only not approved of by the EPA Board but expressly disapproved of for a vastly smaller amount, even with Directorial discretion, which was expressly not granted by the Board because it considered it was unlikely that an appropriate alternative strategy was available or feasible.
The alternative strategy approved of by the Director, including capping the waste dump regularly and regularly applying alkaline solution was one he himself put forward to Shree. It was not one that was the result of any new research or emergent technology and it was one that could not have been beyond the wit of the EPA Board to envisage when it rejected above ground storage, ultimately with Shree's complete acceptance of all PAF waste material storage being confined to the DSO Pit. The dedicated above ground PAF waste material storage facility may have involved a new idea but the EPA Board was more concerned with the issue of above ground storage per se than with the location and appearance of the storage facility.
Qualitatively, the main aspect of the development which gave rise to the issue of potential for environmental harm, as determined by the EPA Board, must, by logic and extrapolation, be very substantially intensified. In making that observation I bear in mind Mr O'Farrell's submission that the aim of the EMPC Act is to minimise environmental harm and not to eliminate it and that an EPN may facilitate an activity that is attended by the risk of environmental harm.
The issues of concern for the Board were the inter-related ones of acid and dissolved metal levels in drainage from various sources both during mine operations and post-closure, all of which of course are affected by the volume of PAF material to be excavated. The controls put in place by the Board to manage those issues of concern to the satisfaction of the Board have now been set at nought by the Director by the varied Permit conditions brought about by the EPN.
The Board thought that to manage the risk of acid mine drainage during the operation of the mine and into the long-term, post-closure, all PAF material must be stored in the DSO Pit, since that appears to be the only secure, long-term storage option. (Emphasis added.)
It was also the Board's view that if the project ran out of PAF material storage volume in the DSO Pit before mining of the Main Pit was completed, then mining was to cease once the storage space in the DSO Pit was exhausted.
I have already alluded to, and I note as significant that whilst the proponent had stated that it was supportive of a Permit condition which did not allow storage of PAF material elsewhere, either above the ultimate flood level of the DSO Pit or elsewhere on the site, unless approval from the Director was given, the proposed Permit condition (OP2-1) deliberately and expressly did not provide Directorial discretion to approve storage of PAF material elsewhere than in the DSO Pit as it was considered unlikely that an appropriate alternative strategy was available or feasible.
Counsel for the applicant note in their written submissions that while there was an initial proposal for above ground PAF storage, it was not pursued by Shree through the assessment process due to concerns of EPA officers. The proposal was amended by the DPEMP Supplements to remove reference to above ground storage, and the EPA Board's assessment made it clear that such a process could not be undertaken, as I have noted, even with Director's consent. Counsel argue that had Shree not agreed to abandon the above ground storage option, it is entirely feasible that the Board would have rejected the proposal.
I accept that submission. It underscores the fundamental nature of the qualitative change to development brought about by the EPN. Irrespective however of what the EPA Board may or may not have done, it is my view that any informed bystander considering what the Director allowed as a variation of the restrictions of the Permit would observe that the EPN changed the fundamental development allowed by the Permit.
The change in the amount of PAF waste material and the change by the EPN to the way in which the PAF material was permitted to be stored, when subjected to a qualitative, as well as a quantitative comparison with the development authorised by the Permit, and so compared in their proper contexts, including the circumstances in which the Permit was granted, demonstrate, in my view, that the change wrought by the EPN is a "fundamental" change to the development within the meaning of s 44(10) of the EMPC Act.
As a result the EPN, to the extent that it varies the Permit in the manner impugned, contravenes the proviso contained in s 44(10) of the EMPC Act and is thus not an EPN authorised under s 44 of the EMPC Act. It follows that the decision by the Director was not one authorised by the enactment under which it purported to be made.
I do not find it necessary to consider the remaining grounds of the application for review which proceed on the basis that the Director's exercise of power did not transgress the proscription in s 44(10) of the EMPC Act.
I will hear the parties as to the appropriate orders to be made under the JRA Act.