Thirteenth Beach Coast Watch Inc v The Environment Protection Authority
[2009] VSC 53
•23 February 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 8846 of 2008
| THIRTEENTH BEACH COAST WATCH INC | Applicant |
| and | |
| THE ENVIRONMENT PROTECTION AUTHORITY | First Respondent |
| and | |
| PLENARY ENVIRONMENT (BARWON) PTY LTD | Second Respondent |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 January 2009 | |
DATE OF JUDGMENT: | 23 February 2009 | |
CASE MAY BE CITED AS: | Thirteenth Beach Coast Watch Inc v The Environment Protection Authority & Anor | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 53 | |
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Environmental protection and conservation – Decision by the Environment Protection Authority to issue a works approval for a sewerage sludge treatment facility – Application for review by incorporated environmental association with acknowledged standing – Two available grounds of review under s 33B of the Environment Protection Act 1970 – Decision affirmed by Victorian Civil and Administrative Tribunal (“VCAT”) – Appeal on questions of law – Held that association had no “interests” capable of being “unreasonably and adversely affected” by the use of the proposed works within the meaning of the first ground of review – Held that no case of inconsistency with government policy shown under second ground – Observations as to whether “environmental risk” is relevant under s 33B – Observations as to burden and standard of proof – Leave to appeal granted but appeal dismissed.
Environment Protection Act 1970 ss 19A, 20C, 33B, 37 & 37A – Victorian Civil and Administrative Tribunal Act 1989 ss 5, 51 & 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N. Collingwood | Maddocks |
| For the First Respondent | Mr G. Purcell | Environment Protection Authority |
| For the Second Respondent | Mr M. Wright QC and Mr M. Townsend | Clayton Utz |
HIS HONOUR:
The applicant, Thirteenth Beach Coast Watch Inc (“Coast Watch”), is an association of some 20 or 30 persons incorporated under the Associations Incorporation Act 1981. As its name suggests, it exists for the purpose of trying to protect the coastal environment around Thirteenth Beach, near Connewarre in Victoria.
Coast Watch has applied to this Court under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) for leave to appeal on questions of law against a decision of the Tribunal.[1] VCAT affirmed, on certain conditions, a decision of the first respondent, the Environment Protection Authority (“the EPA”), to issue a works approval under s 19A of the Environment Protection Act 1970 (“the Act”) to the second respondent, Plenary Environment (Barwon) Pty Ltd (“Plenary”), for the construction of a biosolids thermal drying facility to process sewerage sludge in close proximity to the existing sewage treatment works operated by Barwon Water at Black Rock Road, Connewarre.
[1][2008] VCAT 1880.
At a directions hearing on 12 December 2008 it was ordered, in effect, that the application for leave and the proposed appeal be heard together and with expedition. The matter was heard on 7 and 8 January 2009. At the hearing the respondents did not seriously contend that leave to appeal should not be granted. The criteria for leave have been met.[2] Leave will be granted accordingly.
[2]See Secretary to Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
The proceeding before VCAT had been brought under s 33B of the Act. Most of the issues before me turn on the true construction of that section. So far as relevant, s 33B provides:
“33B Applications for review by third parties
(1)If the Authority or a delegated agency—
(a)issues a works approval; or
(b)issues a licence on an application to which section 20(8) applies; or
(c)amends a licence on an application to which section 20A(6) applies; or
(d)removes the suspension of a licence—
a person whose interests are affected by the decision (other than the applicant or licence holder) may apply to the Tribunal, within 21 days after the decision is made, for review of the decision.
…
(2)An application for review under subsection (1)(a) is to be based on either or both of the following grounds—
(a)that if the works are completed in accordance with the works approval, the use of the works will result in—
(i)a discharge, emission or deposit of waste to the environment; or
(ii)the reprocessing, treatment, storage, containment, disposal or handling of waste; or
(iii)the reprocessing, treatment, storage, containment, disposal or handling of substances which are a danger or a potential danger to the quality of the environment or any segment of the environment—
which will unreasonably and adversely affect the interests, whether wholly or partly of that person;
(b)that if the works are completed in accordance with the works approval, the use of the works will result in—
(i)a discharge, emission or deposit of waste to the environment; or
(ii)the reprocessing, treatment, storage, containment, disposal or handling of waste; or
(iii)the reprocessing, treatment, storage, containment, disposal or handling of substances which are a danger or a potential danger to the quality of the environment or any segment of the environment—
in the area which will be inconsistent with any relevant Order declared under section 16, 16A or 17A for the area, or if no relevant Orders have been declared under any of those sections for that area, would cause pollution or an environmental hazard.”
The amended draft notice of appeal states three questions of law and various grounds under each of the three questions. The questions of law are stated as follows:
“1.Where an application for review is brought by a corporate entity under section 33B(2) what interests must that corporate entity establish as being adversely and unreasonably affected in order to establish a ground upon which review can be brought?
2.On the proper construction of section 33B(1) and (2), as it applied at the time of the hearing, what was the true nature of the review jurisdiction of the Tribunal in an application for review brought under that provision?
3.On an application for review under section 33B(1), to what extent does the Tribunal need to be satisfied that the use of the works will result in the consequences specified in 33B(2)(a) or (b) before it can be said that a permissible ground of review has been made out?”
The grounds of appeal are stated in a largely narrative style. It is unnecessary to reproduce them, because they have been overtaken by Coast Watch’s submissions.[3]
[3]At the beginning of the oral hearing, counsel for Coast Watch foreshadowed her submissions by reference to eight propositions.
Coast Watch’s submissions under the first question of law were designed to establish, in essence, that VCAT had adopted too narrow an interpretation of the word “interests” in paragraph (2)(a) of s 33B. Under the second, Coast Watch stressed the fact that VCAT had in its reasons wrongly quoted a repealed version of s 33B(2) and submitted that VCAT had – probably for that reason – wrongly restricted its review. In particular, Coast Watch submitted that VCAT had wrongly failed to appreciate that a mere risk of discharges, emissions or deposits of waste from the premises could establish the grounds relied upon. In relation to the third question of law, Coast Watch’s arguments were essentially to the effect that VCAT had erred in relation to the standard and onus of proof. There was considerable overlap between the arguments advanced in relation to the three questions of law.
The first question of law: the meaning of “interests” in s 33B(2)(a) of the Act
There is no suggestion that Coast Watch, or, for that matter, any of the members of Coast Watch, owned or occupied any property in the vicinity of the land in question or would suffer any physical or financial detriment at all as a result of the proposal. Nevertheless VCAT found that Coast Watch had “sufficient standing” to bring its application for review under s 33B.[4] Apparently[5] this finding was based entirely or principally on a document described as Coast Watch’s mission statement[6], which was in the following terms:
[4][2008] VCAT 1880 at [8]. Before VCAT there was another co-applicant, Clean Ocean Foundation Inc. It was found to have sufficient standing also.
[5]See [2008] VCAT 1880 at [8], footnote 2.
[6]This document was produced by Coast Watch to VCAT late in the proceedings after much inquiry by VCAT as to the nature of Coast Watch’s “interests” and as to the ways in which they might be unreasonably and adversely affected by the proposal.
“Mission
To represent community’s concerns for 13th Beach Coastal Area, which includes:
•surrounding wetlands of International (RAMSAR – Lake Connewarre) and State (Breamlea Flora and Fauna Reserve)
•13th Beach Coastline and Ocean
And provide a single voice on environmental and conservation issues in order to protect and enhance the environment for current and future generations
Vision
To stop the Sewage Sludge Factory that is to built at Black Rock
To close the ocean outfall at BlackRock
To raise public awareness and promote wider understanding of environmental and conservation issues in the area
To promote improvements in the local environment via particular activities, projects and lobbying.
To broaden interests in environmental issues in the community through assisting in expanding the involvement of people in member groups and developing networking between groups
To promote Ecological sustainable Development
To reduce Climate change impacts
-enact change at the local level while promoting awareness of Global issues
-promote use of alternative energy and move away from reliance of fossil fuels
-every person to contribute
Values
13th Beach is professional, collaborative and courageous”
Before VCAT, the respondents did not materially contest Coast Watch’s standing.[7] Nor did they seek to resile from that stance before this Court. Hence it is common ground that Coast Watch was duly found to be “a person whose interests are affected by the [EPA’s] decision” within the meaning of s 33B(1).[8] If that view be correct (which I need not and do not decide), then the word “interests” in s 33B(1) has a very wide meaning.[9]
[7][2008] VCAT 1880 at [8].
[8]See also s 5 of the VCAT Act.
[9]However, compare One Steel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc [2006] SASC 114 at [10]-[33].
Coast Watch submitted that an equally wide meaning – indeed, an identical meaning – should be given to the word “interests” in s 33B(2)(a); and that VCAT had failed to adopt such a meaning.
It is true that there is a presumption of statutory interpretation that the same words should be given the same meaning wherever they appear in a statute.[10] However, as Pearce and Geddes say[11], the presumption is readily rebuttable, especially in relation to a large and frequently amended Act. I would put the Act – including, relevantly, the provisions relating to the review of decisions of the EPA – in that category. I will say more about the relevant legislative history shortly. But I note at the outset that the word “interests” has many senses and shades of meaning and that it is used in s 33B in two quite different contexts – standing to appeal and grounds of appeal.
[10]Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452; Pearce and Geddes, Statutory Interpretation in Australia, 6th edition, 2006, at [4.6]. See also Prestcold (Central) Ltd v Minister of Labour (1969 1 WLR 89; Eureka Funds Management Ltd v Freehills Services Pty Ltd [2008] VSCA 156 at [4], [10] and [52] .
[11]Op cit. at [4.7].
VCAT did not in its reasons explicitly address the meaning of the word “interests” in s 33B(2)(a). However it did not draw any express distinction with s 33B(1). Indeed, contrary to Coast Watch’s submissions before me, I think that, rightly or wrongly, VCAT did accept[12] that Coast Watch’s “interests”, for the purposes of s 33B(2)(a), were to be ascertained by reference to the objects and concerns set out in its mission statement and the very similar objects and concerns that had been advanced orally on its behalf at the VCAT hearing[13]. However VCAT was not persuaded that those “interests” would be “unreasonably and adversely affected” by the use of the proposed works.
[12]See [2008] VCAT 1880 at [8], [13], [26].
[13]See the list thereof set out at pages 3-4 of the EPA’s written submissions dated 6 January 2008 (scil 2009).
In any event, it seems to me that none of the “interests” on which Coast Watch relied was an interest of a kind covered by s 33B(2)(a). Rather, in my opinion, s 33B(2)(a) should be interpreted as referring to the financial, physical or other like personal interests of the particular applicant as an individual or as a corporation, as the case may be. In my view, it is only interests of that kind which can intelligibly be said to be capable of being “unreasonably and adversely affected” by the “use” of proposed works.[14] By contrast, one would not normally speak of an intellectual, philosophical or emotional interest in the protection of the environment as being something capable of being unreasonably and adversely affected by the use of proposed works, even works to which the person or corporation was opposed on environmental grounds. It would be at least odd to refer to such use as being apt to unreasonably and adversely affect the objects or concerns of the person or corporation.
[14]Within the meaning and for the purposes of s 33B(2)(a).
Further, the provisions of s 33B(2) as a whole indicate very strongly that intellectual, philosophical or emotional concerns about the protection of the environment cannot constitute “interests” for the purposes of s 33B(2)(a). In my view, Parliament has made exhaustive provision in paragraph (b) of s 33B(2) as to the grounds able to be relied upon by a party with no personal stake in the outcome. Such a party[15] is entitled to assert, and to seek to satisfy VCAT, that the use of the approved works will result in one or more of the circumstances specified in s 33B(2)(b). Those circumstances are defined in part by reference to inconsistency with any relevant Order declared under sections 16, 16A or 17A for the area, or, if no relevant orders have been declared under any of those sections for that area, by reference to the causing of “pollution” or an “environmental hazard”. Orders under sections 16, 16A and 17A declare “State environment protection policies” (as defined) “waste management policies” (as defined), and “national environment protection measures” (as defined), respectively. “Pollution”[16] and “environmental hazard” are also defined terms. Objectively ascertainable standards of environment protection are thereby set. In my view, Parliament did not intend that those standards could be replaced or raised or otherwise modified by the environmental standards of any person or entity who or which might choose to become an applicant for review. But that very thing would be the effect of accepting Coast Watch’s submissions on this aspect of the case. Counsel for Coast Watch acknowledged as much. In relation to an environmental organisation such as her client, she did not shrink from submitting that VCAT’s task would be to assess the level of risk to the environment that the proposed development involved, taking into account the “interests” of the organisation, which in turn might be set at a higher or stricter standard than the laws of the State of Victoria.[17] The objectives of the organisation would, she submitted, be at least a relevant consideration in determining whether the proposed development posed an unreasonable risk. I note from Coast Watch’s mission statement that it has a “vision” that includes “To stop the Sewage Sludge Factory that is to [be] built at Black Rock”. If counsel’s submissions were correct, that aspect of Coast Watch’s “vision” would be a relevant consideration in determining whether the use of the proposed works will “unreasonably and adversely affect [its] interests”, regardless of whether the use of the works in accordance with the relevant approval would comply with the standards set by the laws of Victoria. In my opinion, that simply cannot be right. It is no answer to say, as counsel sought to do, that the problem can be avoided by focussing on whether the (adverse) effect on the applicant’s interests would be unreasonable. The basic parameters (or, in the vernacular, the “goal posts”) would have shifted. They would have moved away from the standards set by the laws of the State, in favour of the idiosyncratic standards set by the individual or corporate body who or which happens to be applying for review of the decision.
[15]If a person” affected” within the meaning of s 33B(1).
[16]“Pollution” is defined by virtue of the definitions of “pollute” and “polluted”: see the definitions of those words in s 4 and see s 4(4) of the Act.
[17]Transcript, 35.
In my view, contrary to Coast Watch’s submissions, these textual and policy considerations specific to s 33B are not outweighed by the general policy of the Act in favour of environmental protection, nor by a consideration of the purpose of the Act as stated in s 1A nor by a consideration of the “principles of environmental protection” set out in ss 1B to 1L of the Act, which include the “precautionary principle” set out in s 1C. Indeed the very introduction of those principles in 2001 confirms that the Act is no longer as single-minded and draconian in its promotion of environmental protection as it may once have been.[18] For example, the first-stated of the new principles is headed “Principle of integration of economic, social and environmental considerations”: s 1B.[19]
[18]Compare Phosphate Co-operative Co of Australia v Environment Protection Authority (1977) 138 CLR 134 at 141-143 per Stephen J, 146-147 per Aickin J (dissenting); Australian Conservation Foundation v Environment Protection Appeals Board[1983] 1 VR 385 at 386.
[19]But compare Western Water v Rozen [2008] VSC 382 (Osborn J) at [94]-[116].
Moreover, I am probably bound to adopt a confined view of “interests” in s 33B(2)(a) because of the judgment of the Full Court in Australian Conservation Foundation v Environment Protection Appeal Board[20]. That case dealt with the predecessor of s 33B of the Act as it stood in 1980, namely s 32 thereof. In particular, s 32(5) of the Act provided, so far as relevant, that where the EPA granted a licence[21] under the Act any person who felt “aggrieved” thereby and who had made a relevant prior objection might appeal to the Board against the grant on any one or more of the following grounds, namely:
“(a)That the discharge, emission or deposit of wastes under the provisions of the licence will unreasonably and adversely affect the interests, whether wholly or partly, of that person;
(b)That the discharge, emission or deposit of wastes under the provisions of the licence will be inconsistent with State environment protection policy established for the area or, in the absence of such policy, would result in a condition of pollution;
(c)That the emission of noise above tolerable levels under the provisions of a licence will unreasonably and adversely affect the interests, whether wholly or partly, of that person or would be inconsistent with or will result in conditions inconsistent with State environment protection policy established for the area.”
[20][1983] 1 VR 385.
[21]There was no provision for works approvals in the Act at that time. It has not been suggested that there is any significance for present purposes in the distinction between a licence and a works approval.
The direct issue in the case was the standing of the Australian Conservation Foundation as a person allegedly “aggrieved” by the decision in question, not the meaning of “interests” in paragraphs (a) and (c) of s 32(5). However, in holding that any objector had standing to appeal to the Board, the members of the Full Court had occasion to contrast paragraph (b) of s 32(5) with paragraphs (a) and (c) thereof. In doing so, each of the judges either expressly or implicitly proceeded on the basis that paragraphs (a) and (c) referred to “interests” in a narrow sense only. Thus Young CJ said[22]:
[22]At 395.
“In the Act with which we are concerned, it may be said that the busybody is allowed full sway for one[23] of the grounds of appeal, upon which an appellant before the Board may rely, has nothing to do directly with the personal position of the appellant or of any other party. I refer to the ground in para. (b) which is concerned with provisions of a licence or resulting conditions which are inconsistent with State environment protection policy. It is difficult to see how a person whose pecuniary or other direct interests in the narrow sense are said to be affected would seek to rely on this ground rather than upon the grounds in paras. (a) or (c). Thus the ground in para. (b) must contemplate that some other objector who feels aggrieved should have a right to appeal.”
Murray J said[24], with apparent approval[25] of the submission of Miss Kenny (as Kenny J then was) to which his Honour was referring:
“Miss Kenny pointed to the three grounds of appeal set out in s 32(5) and submitted that whereas grounds (a) and (c) themselves provided for a direct interest it was difficult to conceive of persons who could object under ground (b) who would come within the expression ‘persons aggrieved’ as it has been on many occasions interpreted.”
Marks J said[26]:
“Further, it is significant that those specified grounds include one[27] that indeed has no relation whatever to the personal legal economic or other special interest of the appellant. I refer to s 32(5)(b).”
[23]My emphasis.
[24]At 398.
[25]See also at 401.
[26]At 404.
[27]My emphasis.
Coast Watch sought to distinguish Australian Conservation Foundation v Environment Protection Appeals Board on the basis that it was concerned with old provisions that were different from those of s 33B(2), but in my opinion the similarities between the two sets of provisions are so close that I should regard the observations to which I have referred as being at least highly persuasive for present purposes. Those observations are in any event strongly supportive of my own reading of s 33B(2).
I should mention one other aspect of the legislative history. The expression “person aggrieved” was retained in the relevant provisions until 1998 when s 33B(1) was replaced by a substituted provision. The corresponding expression became “person whose interests are affected”. The substitution was effected by the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 the main purpose of which was to amend various Acts (including the Act) as a consequence of the VCAT Act. The differences between the old and the new versions of s 33B(1) mainly reflected the fact that third party challenges – now termed “applications for review” - were to go thenceforth to the newly established Tribunal. The VCAT Act, in turn, established a tribunal of very broad jurisdiction, incorporating the jurisdictions of numerous bodies which were to go out of existence. The VCAT Act contained various provisions relevant to standing, including, in particular, s 5. That section provides that where an enabling enactment provides that a person whose interests are affected by a decision may apply to the Tribunal for review of the decision, the word “interests” is to be interpreted in the very broad way stated in s 5. The 1998 legislation introduced the expression “person whose interests are affected” into many enabling enactments, including the Act. So it seems to me that the purpose of the change from “person aggrieved” to “person whose interests are affected” in s 33B(1) was confined to matters of standing. The meaning of the word “interests” in s 33B(2) and in its predecessor, s 32(5), had earlier been shown by the ACF case to be narrow. The 1998 legislation should not be interpreted as having altered, by a side wind, the established, clear (narrow) meaning of “interests” in s 33B(2).
If anything, then, the approach of VCAT was too generous to Coast Watch in this regard. Coast Watch had no interests that were capable of being unreasonably and adversely affected by the proposal. Hence s 33B(2)(a) was inapplicable. Coast Watch should have been confined to endeavouring to make out a case under paragraph (b) of s 33B(2). [28]
[28]However, as I will explain below, Coast Watch’s counsel effectively acknowledged before me that, for other reasons, Coast Watch could not succeed in this appeal in relation to s 33B(2)(b).
Accordingly I do not accept any of the grounds advanced by Coast Watch in relation to the first question of law.
The second question of law: Quoting the wrong provisions: Did VCAT unduly restrict its review by overlooking “risk”?
The arguments advanced by Coast Watch in relation to the second question of law were based in large part on the fact that VCAT quoted a repealed, inapplicable version of s 33B(2) in its reasons. Coast Watch urged me to find that VCAT had actually overlooked the current version of s 33B(2). Coast Watch submitted that, probably as a result of that mistake, VCAT had applied an unduly restricted approach to Coast Watch’s application for review, particularly by failing to proceed on the basis that “environmental risk” could serve to establish a ground under s 33B(2)(a) or (b).
Paragraph 7 of VCAT’s reasons reads:
“7.The application for review has been brought under s 33B of the Environment Protection Act 1970. The available grounds for a third party review are limited by the Act to those set out in ss 33B(2), namely:
(a)that if the works are completed in accordance with the works approval, the use of the works will result in a discharge, emission or deposit of waste which will unreasonably and adversely affect the interests, whether wholly or partly of that person [ie the person seeking the review]; and/or
(b)that if the works are completed in accordance with the works approval, the use of the works will result in a discharge, emission or deposit of waste which-
(i)will be inconsistent with State environment protection policy established for the area in which the discharge, emission or deposit will occur; or
(ii)where there is no State environment protection policy established for that area, would cause pollution.”
The words quoted represent paragraphs (a) and (b) of s 33B(2) as it stood immediately before its amendment, as from 1 July 2007, by Act no 61 of 2006. The application for review was brought after 1 July 2007. So the current provisions, which are set out in paragraph 4 above, applied in substitution for the provisions quoted by VCAT.
Coast Watch submits that the differences between the two sets of provisions are significant for present purposes. In particular, Coast Watch points to the inclusion of the sub-paragraphs numbered (ii) and (iii) in each of paragraphs (a) and (b) of the new version of s 33B(2).
Coast Watch submits that under s 33B(2)(a)(ii) and (iii) and under s 33B(2)(b)(ii) and (iii), VCAT does not need to find that the use of the proposed works will in fact result in a “discharge, emission or deposit of waste to the environment”[29] before VCAT can conclude that the use will lead to a situation which will unreasonably and adversely affect the applicant’s interests or which will be inconsistent with a relevant Order etc.
[29]This is the language of s 33B(2)(a)(i) and of s 33B(2)(b)(i).
Under (ii) and (iii), according to Coast Watch, at least in some circumstances,[30] a mere risk of a discharge etc may be sufficient to show that an objector’s interests will be unreasonably and adversely affected by the proposed use or that there will be inconsistency with a relevant Order etc. This must be the Parliamentary intent, Coast Watch says, because any other interpretation would render (ii) and (iii) superfluous. This is significant, Coast Watch submits, because it is often very difficult for an objector to satisfy VCAT that the use of the proposed works “will” result in a discharge, emission or deposit of waste to the environment (of the requisite character). Had VCAT asked itself about “environmental risk” instead of demanding proof that discharges etc will occur, the outcome of the review might have been different, Coast Watch submits.
[30]For example, where the relevant environmental values are high and there is a lack of knowledge about the likely impact of the works. That was the situation in the present case, according to Coast Watch.
In support of those submissions, Coast Watch refers to s 51 of the VCAT Act, which, among other things, provides that in exercising its review jurisdiction VCAT has all the functions of the original decision maker and any other functions conferred on the Tribunal by the relevant enabling enactment. In the present case, Coast Watch submits, the functions conferred by ss 20C, 37 and 37A of the Act were thus picked up. Coast Watch makes no claim of error of law in relation to any of those sections in particular.[31] However, I gather that Coast Watch points to their existence as a general indication that VCAT’s functions and powers in this case were wide. Coast Watch says, in its written submissions,[32] that the “requirements of s 33B(2) set out the grounds upon which an application for review may be brought, but do not confine the nature of the review once the ground is made out”; and that “it is not appropriate for the Tribunal to approach the task before it simply by asking whether the works approved would cause actual emissions which directly affected the applicant’s interests”; and, further, that VCAT was under a duty to assess the evidence against sub-paragraphs (ii) and (iii) of ss 33B(2)(a) and (b) even if Coast Watch did not articulate any such case before VCAT.[33]
[31]But see below for further references to them.
[32]Paras 54-55.
[33]Citing, in that last regard, Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244.
In discussions before this Court as to how, if there were no risk of a discharge, emission or deposit of waste to the environment, the reprocessing, treatment etc. of waste or substances could lead to an adverse effect on an applicant’s interests within the meaning of s 33B(2)(a) or could be inconsistent with a relevant Order or could cause pollution or an environmental hazard within the meaning of s 33B(2)(b)(ii) or (iii), there was conjecture that such a result might be caused by fire, explosion or flood associated with the reprocessing, treatment etc. Counsel for Coast Watch, by leave, later supplied the Court with references to the evidence before VCAT where alleged risks of fire or flood in relation to the proposed facility were mentioned. (There was no suggestion before VCAT of a risk of explosion). I need not and do not express any concluded view as to whether any such risks were relevant risks for the Tribunal to assess under the Act, because the Tribunal did in fact make findings about the concerns raised by Coast Watch in relation to fire risks and flood risks. It held, in substance, that any such risks were negligible. Coast Watch does not suggest that the Tribunal’s findings about fire and flood risks, in particular, were affected by error of law. I need say no more about them.
I turn now to the consideration of Coast Watch’s substantive submissions under this heading.
Although the mistake in VCAT’s statement of reasons was unfortunate, I am satisfied that it was merely a drafting slip and that VCAT was aware of the new provisions and took them into account. The hearing before VCAT lasted five days. The fact of the amendment was not specifically discussed, but the correct provisions were referred to many times during the course of the hearing, both by the parties and by the Tribunal. In the case of the parties, the references were both oral and written. Many unequivocal instances of this were drawn to my attention by the respondents. The Tribunal was presided over by a Deputy President with legal qualifications. He displayed an awareness of the new provisions on various occasions. For example, near the outset[34] he asked about “national environment protection measures”, which could only have been relevant because of the reference in the current provisions to s 17A of the Act, a reference not included in the repealed version of s 33B(2). Later the Deputy President asked whether Coast Watch intended to call evidence that any of the “discharges, emissions or deposits of waste or the reprocessing treatment [sic]”[35] was going to have certain effects. The words “reprocessing” and “treatment” appear in the new version of s 33B(2) - in paragraphs (ii) and (iii) thereof - but not in the old. Later again,[36] the Deputy President expressly and specifically asked Coast Watch’s representative how a certain matter came within (i), (ii) or (iii) of s 33B(2)(a). On yet another occasion[37] he asked the following question of Coast Watch’s representative, Ms Marshall:
Is that saying you’re relying on 33B(2)(a)(ii), which is just simply the reprocessing treatment storage container [sic] disposal and handling of waste? Or are you relying on other parts of the section that talk about discharges, emissions, or deposits of waste?
[34]Transcript, 29 (first day).
[35]Transcript, 143 (second day).
[36]Transcript, 163 (second day).
[37]Transcript, 254 (second day).
The Tribunal’s reasons for decision were given orally, only 14 days after the hearing concluded. They were later reduced to writing. I do not accept that the Tribunal had forgotten the correct provisions in the meantime. Moreover, the Tribunal’s reasons themselves twice[38] refer to the absence of any indication that the proposed works would be inconsistent with any “WMP”, an acronym for “waste management policy”. The new s 33B(2) contains a reference to waste management policies in that it refers to orders declared under s 16A, but the old s 33B(2) did not.
[38]Paras 17 and 26.
The likely explanation for the mistaken quoting of the old provisions is that the written opening submissions of the EPA made the same mistake. Despite the numerous subsequent references to the correct provisions, the error in the EPA’s original written submissions was not picked up. It would seem that in composing its reasons the Tribunal has somewhat mindlessly reproduced the erroneous part of the EPA’s submissions. Nevertheless I would regard this as a mere drafting slip, rather than as establishing that VCAT failed to take the relevant provisions into account.[39]
[39]A similar conclusion was reached by the Supreme Court of New South Wales in comparable circumstances in Fairfield City Council v Liquor Administration Board [2001] NSWSC 870 at [27]-[41].
Further, insofar as Coast Watch sought before VCAT to establish a ground under s 33B(2)(a) or (b), its case happened to be entirely based on the alleged potential for discharges, emissions or deposits of waste to the environment.[40] At first sight, one would think that, in any event, a claim of that kind fell to be assessed under (i), not under (ii) or (iii). Otherwise the requirement to show that the use “will” result in a discharge etc. of waste would be set at nought. The notion of “waste” permeates the relevant provisions of the Act. Works approvals are required whenever the construction or alteration of any plant, equipment or process on scheduled premises is likely to cause an increase or alteration in the “waste” discharged or emitted from, deposited to, or produced at, the premises.[41] “Waste” is defined extremely broadly in the Act.[42] In very many cases the proposed works will necessarily involve at least some “reprocessing, treatment, storage, containment, disposal or handling” of waste, or of substances of the kind referred to in (iii), most of which will also fall within the definition of “waste”. Most contested cases will raise issues as to the degree of likelihood of discharge etc. of “waste”. So there will very frequently be overlap between (i) (which of course refers to “waste”), (ii) (which also refers to “waste”) and (iii) (which refers to “substances” that are a danger or potential danger to the environment).
[40]This was acknowledged by Coast Watch’s counsel before this Court: transcript, 77. See also 89-90.
[41]Section 19A(1)(a).
[42]Section 4.
Such considerations make it difficult to understand the Parliamentary intention behind the 2006 amendments to s 33B(2). The EPA concedes that the intention was to expand the available review grounds, but the precise nature and extent of the expansion is not identified.
Neither the explanatory memorandum nor the second reading speech for the 2006 legislation is very enlightening. In the second reading speech, the Minister seems to indicate that the amendments to s 33B(2) were merely consequential on the removal from the Act of what he called the “antiquated” schedules 1 to 6, and their replacement with a simple definition of “scheduled premises”. Consistently with this, I note that a ground of review relating to the “reprocessing, treatment etc.” of “prescribed industrial waste” existed prior to the making of the 2006 amendments: see the former s 33B(2C).
In any event, some work must be given to sub-paragraphs (ii) and (iii) of s 33B(2)(a) and (b). On one view (a view which, if correct, would be a complete answer to Coast Watch’s submission on this part of the case), sub-paragraph (ii) and (iii) are only applicable in relation to dangers unconnected with discharges, emissions or deposits of waste. A possible example might be the risk of explosion, fire or flood (although it is still difficult to divorce such things from “discharges etc”). On the other hand, it is arguable that sub-paragraph (ii) or sub-paragraph (iii) could apply even where the only relevant danger is from discharges etc and the risk thereof is below 50%. An example might be a proposal to build a nuclear power plant next door to the applicant’s property. Even if the risk of discharge or emission of nuclear waste were very low, VCAT might (depending on the evidence and all the circumstances) be justified in finding that the use of the works will result in the reprocessing, treatment etc. of waste which would, by its very existence, cause a gross diminution in the value of neighbouring properties.
In any event, I accept that VCAT did not agree with Coast Watch that a mere risk of discharges, emissions etc could be sufficient to indicate that an objector’s interests will be unreasonably and adversely affected or that a situation of inconsistency with a relevant Order etc will arise.[43]
[43]See, esp, para 12 of VCAT’s reasons.
I need not and do not decide whether VCAT was in error in taking that stance. If error was involved, it was not vitiating error. [44] Coast Watch has not shown that VCAT might validly have made a different decision if it had accepted that a mere risk of discharges etc might be sufficient.
[44]As to what constitutes vitiating error, see the cases collected in Wilson v County Court (2006) 14 VR 461 at 470-472; Malcolm v Department of Education and Early Childhood Development [2008] VSC 530 at [43].
Coast Watch could not validly have succeeded under paragraph (a) of s 33B(2) in any event, because, for the reasons I have given in relation to the first question of law, it had no relevant “interests” within the meaning of s 33B(2)(a).
As to s 33B(2)(b), counsel for Coast Watch, under questioning from the Court, effectively conceded that she could not show vitiating error on the part of VCAT in relation to s 33B(2)(b). [45] That concession was correct. On any view, for Coast Watch to have succeeded under s 33B(2)(b), VCAT would need to have been satisfied that the use of the approved works would produce a situation which “will” be inconsistent with a relevant Order or which “would” cause pollution or an environmental hazard.[46] Conceivably, it might be, in a particular case, that a relevant Order is expressed in such a way that a mere risk of discharges, emissions etc “will” involve inconsistency with the Order. Similarly, the definition of “environmental hazard” is such that the mere risk[47] of discharges emissions etc might amount to an environmental hazard. However, Coast Watch did not suggest before this Court that there was any room for the operation of the concept of “environmental hazard” in this case. Rather, as it seems, the geographical area in question was in substance fully covered by Orders in relation to every relevant segment of the environment.[48] Counsel expressly confirmed[49] that it was not alleged that VCAT had misconstrued any relevant Order. Indeed, I was not taken to any of the relevant Orders at all. In addition, I note that there was expert evidence before VCAT from Mr Frame of the EPA to the effect, among other things, that the proposal was not inconsistent with any relevant Order. Mr Frame was cross-examined by Coast Watch’s representative before VCAT, but there was no discernable attempt to put to him that the mere risk of some kind of discharge would infringe some particular provision of a relevant Order. VCAT fully accepted all of Mr Frame’s evidence. Indeed, VCAT said in its conclusion (at paragraph 26) that on “any objective assessment, there can be no possible finding that the use of the works will be inconsistent with any relevant SEPP[50] or WMP[51] in the area.”
[45]Transcript, 47. See also at 93-94.
[46]Of course, it would be insufficient to identify a mere risk of inconsistency etc.
[47]If amounting to a “state of danger” of the kind referred to therein.
[48]This is the impression given by the expert report of Dr John Frame and by the Tribunal’s decision, save that the issue of noise in this area was not covered directly by an order but only indirectly, ie by close analogy with a relevant Order.
[49]Transcript, 47.
[50]State environment protection policy: see s 16.
[51]Waste management policy: see s 16A.
In these circumstances it is unnecessary to deal with Coast Watch’s supporting submissions to the effect that VCAT’s jurisdiction in s 33B applications is wide. However I would venture to say that s 20C of the Act has little or no application to VCAT in s 33B applications for review. In terms, s 20C is directed to the powers and duties of the EPA in considering applications for, among other things, works approvals at first instance. The nature, breadth and flexibility of the powers and duties so conferred on the EPA seems to be inconsistent with what I perceive to be the carefully limited role of VCAT under s 33B: compare especially s 20C(3) and (3A). Further, I doubt very much whether s 33B envisages that there should be a general, unconfined review once one of the grounds has been made out. Rather, it seems to me that, the statutory grounds being somewhat challenging in themselves, Parliament envisaged that where one or other of them was successfully made out, the review would be at an end, save perhaps for a limited discretion in the Tribunal to decline to intervene for some good reason. Finally, I note that s 37 of the Act provides, so far as relevant, that the Tribunal may direct that a works approval shall or shall not be issued or shall or shall not be the subject of a specified condition. In the present case, VCAT exercised this power so as to impose certain additional conditions. Section 37A required VCAT to take into account the relevant planning scheme. It did so.
Before VCAT, Coast Watch did not clearly or expressly rely on sub-paragraphs (ii) and (iii) of ss 33B(2)(a) and (b). Its case was focused on “discharges etc”. Whether in those circumstances VCAT had a duty to assess the case by reference to sub-paragraphs (ii) and (iii) need not be decided. However it is at least arguable that the function of VCAT under s 33B is merely to respond to the case put by the applicant. The language of s 33B, especially the reference to “grounds”, is not common amongst VCAT’s “enabling enactments”. I will say a little more on this topic in dealing with the third question of law.
For these reasons, I do not uphold any of the grounds advanced in relation to the second question of law.
The third question of law: Standard and onus of proof
Finally, Coast Watch made, in essence, two points in relation to the third question of law, as follows:
·that VCAT wrongly required proof to the level of certainty in relation to the grounds relied on, particularly the ground that the proposed use would have consequences that would adversely and unreasonably affect Coast Watch’s interests; and
·that VCAT wrongly imposed an onus of proof on Coast Watch, in the sense that VCAT expected Coast Watch itself to lead evidence to establish the grounds relied on.
Coast Watch submitted that VCAT is not a court, and that the nature of the inquiry to be conducted by VCAT is inquisitorial rather than adversarial, and that the concept of the onus of proof does not apply.[52] It submitted that, in the context of the Act, the word “will” in s 33B(2) must be read down, particularly having regard to the principles set out in sections 1A to 1L. In the present case, Coast Watch submitted, it was open to find that the grounds of review had been made out by reference to Coast Watch’s detailed written submission before VCAT and its cross-examination of the EPA’s expert, Mr Frame. Essentially, Coast Watch submitted, its case before VCAT related to the “environmental risk” associated with the proposed works by reference to the “high value” of the surrounding natural environment and the “lack of information” forming the basis of the EPA’s decision to issue a works approval. According to Coast Watch, VCAT is promoted as a forum for self-represented persons. There is no real basis for a finding that positive evidence must be called. Lack of knowledge about the “hazardous materials” to be handled at the proposed facility may in itself present a “risk” which constitutes a ground under sub-paragraphs (ii) and (iii) (of s 33B(2)(a) or (b)) when coupled with the high value of the local environment. The task for the Tribunal is to determine for itself whether the decision under review is the correct one.[53] The Tribunal must make an independent assessment and an independent determination of the question which was before the decision-maker. This accords with the Act and the nature of review jurisdiction. So went Coast Watch’s arguments under the third question of law.
[52]Citing Bausch v Transport Accident Commission (1996) 11 VAR 117 (Eames J); Justice Kevin Bell, “The role of VCAT in a changing world: the President’s review of VCAT”, Speech delivered to the Law Institute of Victoria, 4 September 2008, p 1.
[53]Citing Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 422 per Bowen CJ and Deane J.
By reason of my conclusion that Coast Watch had no relevant interests for the purposes of s 33B(2)(a) and by reason of Coast Watch’s correct concession that it cannot succeed in this appeal in relation to s 33B(2)(b) in any event, the third question of law falls away and need not be addressed. Once again, however, I will venture some comments on Coast Watch’s submissions under this heading.
I am not satisfied that VCAT imposed any requirement of proof “to the level of certainty”. Its reasons do not include any statement to that effect. In paragraph 12, it does note that the word “will” appears in several specified places in s 33B and it repeatedly emphasises that word by reproducing it in italics. However, the last sentence of paragraph 12 shows that VCAT’s purpose was merely to contrast likelihood with possibility.[54] Referring to Coast Watch’s representative, Ms Marshall, VCAT says:
“Despite the obvious passion evident in Ms Marshall’s presentation to the Tribunal, unsupported or unsubstantiated assertions that any of these events may (as opposed to will) arise is insufficient to found a successful application under s 33B.”
[54]Compare, generally, RJE v Secretary to the Department of Justice [2008] VSCA 265.
Further, during the VCAT hearing, the Deputy President had said to Ms Marshall:
“… you’re entitled, as an applicant for review, to bring a matter like this before the tribunal, provided it is done within the grounds set out in the Act. But you bear the burden of proving, on the balance of probabilities, that there will be problems.”[55]
[55]Transcript, 260.
The Deputy President had also made similar references to the “balance of probabilities” on at least two earlier occasions during the hearing.[56]
[56]Transcript, 182, 185.
On the other hand, it is clear that VCAT considered that a general burden of proof lay on Coast Watch, at least in the sense that VCAT expected Coast Watch itself to lead evidence to establish the grounds relied upon.[57] Indeed, the respondents submit that any applicant under s 33B is rightly required to carry the burden of proof.
[57]See especially para 23 of VCAT’s reasons.
In PJR v Secretary to the Department of Justice[58], Justice Morris, as President of VCAT, held that in the exercise of VCAT’s original jurisdiction under s 26(2) of the Working with Children Act 2005 it would be inappropriate to characterise the matter as subject to proof “on the balance of probabilities” or by reference to the principles in Briginshaw v Briginshaw[59], or any other similar test used in civil proceedings.
[58](2006) 25 VAR 336 at 341. See Pizer, Victorian Administrative Law [V 3759].
[59](1938) 60 CLR 336 at 361-362.
Whether a similar view is appropriate in relation to s 33B of the Act is a difficult question of law. Transport Accident Commission v Bausch[60] established that, at least in relation to the jurisdiction of the former AAT to review decisions of the Transport Accident Commission, the review was not to be treated as an adversarial proceeding.[61] Tadgell JA said that the AAT, unlike a court, had a duty to arrive at the correct or preferable decision regardless of the form of the parties’ submissions. VCAT has inherited all of the AAT’s review jurisdiction. However, there are limits to the duty referred to in Bausch. As the Appeal Division said in McDonald v Guardianship and Administration Board[62]:
“Of course, if an applicant for review does nothing to forward the review, the tribunal cannot be expected to argue his case for him. Sullivan v Department of Transport [63] …”.
Moreover, in McDonald, the Appeal Division said that a hearing before the AAT would not always be required to be conducted de novo. It treated as applicable to the AAT[64] the following sentence from the decision of the High Court in Re Coldham; Ex parte Brideson (No.2)[65]:
“Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd.[66]”
[60][1998] 4 VR 249.
[61][1998] 4 VR 249 at 259.
[62][1993] 1 VR 521 at 534-535. See also New Theme Pty Ltd v Victorian Casino and Gaming Authority [2002] VSCA 80 at [63]; PJR v Secretary to the Department of Justice (2006) 25 VAR 336 at 341.
[63](1998) 20 ALR 323 at 343.
[64][1993] 1 VR 521 at 529. See also at 528-530 generally.
[65](1990) 170 CLR 267 at 273-4.
[66](1976) 135 CLR 616 at 621-622.
McDonald v Director-General of Social Security[67] is often cited as the foundation case for the proposition that there is no onus of proof in the various Australian AATs or their equivalents. However in that case Woodward J said,[68] quite correctly in my respectful opinion:
“It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn – but it is not helpful to categorise this common-sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it, and in the present case the Social Security Act 1947 (Cth) does not.”
[67](1984) 1 FCR 354 at 358.
[68]At 358.
In the present case it is fairly arguable that s 33B(2) of the Act does place an onus of proof on applicants for review, but I need not and do not decide that question.[69] In any event the present case was, at least, one in which there was “a good deal of evidence pointing in one direction… before the Tribunal” such that “any intelligent observer could see that, unless contrary material [came] to light, that [was] the way the decision [was] likely to go”.
[69]Compare Santos (N.T.) Pty Ltd v East Gippsland SC [2008] VCAT 1658 at paras [34]-[60] esp at [59].
Moreover, the Tribunal’s conclusions in favour of affirming the EPA’s decision were quite emphatic. Independently of the failure of Coast Watch to lead “any real evidence to support its claims”,[70] VCAT was satisfied on the basis of the “detailed expert evidence provided by the EPA and Plenary that it [was] appropriate that a works approval be issued”.[71] VCAT described that evidence as “comprehensive and compelling”.[72] Obviously, this was not a case in which the placement of the burden of proof, or, for that matter, the adoption of a standard of proof on the balance of probabilities, made any difference to the outcome. If VCAT was in error in relation to the burden or standard of proof, then, once again, the error was not a vitiating one.
[70]VCAT reasons, para 23.
[71]Para 24.
[72]Ibid.
For these reasons, I do not uphold any of the grounds advanced under the third question of law.
Conclusion
Leave to appeal will be granted, but the appeal will be dismissed.
Costs
I will hear the parties on the question of costs. My provisional inclination is to make no order as to costs, for several reasons. This is the first time that the issues that arose under s 33B of Act have fallen for consideration by this Court. Important issues were raised. Leave to appeal was plainly appropriate. VCAT had quoted the wrong version of s 33B. That was probably due to the EPA’s error. Neither the EPA nor Plenary pointed out to VCAT the error in the EPA’s initial written submissions. Had either done so, this challenge might not have been brought. Neither the EPA nor Plenary clearly articulated in their written submissions a submission that Coast Watch had no relevant “interests” for the purposes of s 33B(2)(a). Nor did either rely on Australian Conservation Foundation v Environment Protection Appeals Board[73] for that proposition.
[73][1983] 1 VR 385.
Nevertheless, I will consider any submissions urging a different order as to costs.
Pro Bono representation
I wish to acknowledge that both counsel and the solicitors for Coast Watch acted on a pro bono basis in the best traditions of the legal profession. Both were engaged on short notice at the request of the Court’s unrepresented litigant co-ordinator. Both did a great deal of work to get the case ready for hearing. The standard of their work was excellent, and of much assistance to the Court.
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CERTIFICATE
I certify that this and the 24 preceding pages are a true copy of the reasons for Judgment of Cavanough J of the Supreme Court of Victoria delivered on 23 February 2009.
DATED this 24th day of February 2009.
Associate to Justice Cavanough
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