Yeats Consulting Pty Ltd T/A Sedgman Yeats v Logan City Council
[2014] QPEC 2
•20 February 2014
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Yeats Consulting Pty Ltd T/A Sedgman Yeats v Logan City Council [2014] QPEC 2
AND
Yeats & Associates Pty Ltd v Logan City Council [2013] QPEC
PARTIES:
YEATS CONSULTING PTY LTD trading as SEDGMAN YEATS, YEATS & ASSOCIATES PTY LTD
(Appellants)
AND
LOGAN CITY COUNCIL
(Respondent)
FILE NO/S:
2582/13 and 2583/13
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
20 February 2014
DELIVERED AT:
Brisbane
HEARING DATE:
8 October 2013
JUDGE:
Searles DCJ
ORDER:
The applications brought by the Appellants are dismissed.
CATCHWORDS:
RESERVED COSTS – Incorrectly issued Environmental Protection Orders – seeking costs pursuant to s 457 of Sustainable Planning Act2009 for costs of appeals – jurisdictional issue – appeals invalidly instituted
JURISDICTION – Requirement for internal review of decision to issue Environmental Protection Order under Environmental Protection Act1994 – appeal directly to courts from “original decision” under s 531 only where decision made by CEO personally or local government itself – whether original decision to issue Environmental Protection Order was made by Delegated Officer, CEO personally or local government – Delegated Officer has authority to issue Environmental Protection Orders – whether Delegated Officer signed on behalf of Chief Executive Officer or local government
Sustainable Planning Act2009 s 457(1)
Environmental Protection Act1994 ss 358, 440ZG, 514, 518, 519, 520, 521(12), 531
Environmental Protection Regulation 2008 s 98
Acts Interpretation Act 1954 ss 14A, 14B, 24A
COUNSEL:
Mr A Skoien for the Appellants
Mr D O’Brien for the Respondent
SOLICITORS:
Thomsons Lawyers for the Appellants
Herbert Geer Lawyers for the Respondent
This judgment concerns Applications by the Appellants for costs pursuant to s 457(1) of the Sustainable Planning Act 2009 (“SPA”) in Appeals 2582/13 and 2583/13. The Appeals were against the decisions of the Logan City Council (“Council”) to issue Environmental Protection Orders (“EPOs”) to the Appellants under s 358 of the Environmental Protection Act 1994 (“EPA”). Both appeals were resolved at a mediation chaired by the ADR Registrar on 13 September 2013.[1] However, the question of costs was reserved. For the reasons that follow the applications must be dismissed.
[1]See Court Documents 7 and 9.
FACTUAL BACKGROUND
The subject of the proceedings is land located at 218-228, 230, 232 and 234-238 California Creek Road, Cornubia (“the Land”). At all material times the Land was owned and developed by Family Assets Pty Ltd (“Family Assets”). Caswell Civil & Landscape Pty Ltd (“Caswell”) and Yeats Consulting Pty Ltd trading as Sedgman Yeats (“Sedgman Yeats”) are consultants of Family Assets and have been involved in the development of the Land.[2]
[2]Affidavit of Smith, paragraph 10 (2583/13).
17 June EPO
On 17 June 2013 the Council issued an EPO (“17 June EPO”) to Sedgman Yeats. The 17 June EPO was issued pursuant to s 358(e)(iii) of the EPA and alleged that Sedgman Yeats had unlawfully deposited prescribed water contaminants in waters and related matters in contravention of s 440ZG of the EPA.[3] Council also issued similar EPOs to Family Assets and Caswell.
[3]DLS-5 to the Affidavit of Smith, pages 53 – 59 (2582/13).
EPA s 358(e)(iii) provides:-
“When order may be issued
The administering authority may issue an order (environmental protection order) to a person—
(a) …
(b) …
(c) …
(d) …
(e) if the person is, or has been, contravening any of the following provisions—
(i) …
(ii) …
(iii) Section 440ZG.”
Section 440ZG provides:-
“Depositing prescribed water contaminants in waters and related matters
A person must not—
(a) unlawfully deposit a prescribed water contaminant—
(i) in waters; or
(ii) in a roadside gutter or stormwater drainage; or
(iii) at another place, and in a way, so that the contaminant could reasonably be expected to wash, blow, fall or otherwise move into waters, a roadside gutter or stormwater drainage; or
Example of a place for subparagraph (iii)—
a building site where soil may be washed into an adjacent roadside gutter(b) unlawfully release stormwater run-off into waters, a roadside gutter or stormwater drainage that results in the build-up of earth in waters, a roadside gutter or stormwater drainage.
Maximum penalty—
(a) if the deposit or release is done wilfully—835 penalty units; or
(b) otherwise—300 penalty units.”
Two 27 June EPOs
On 25 June 2013 Council wrote advising that the 17 June EPO “will be withdrawn and will be reissued to all parties, with an amendment to the reference of ‘between January and June 2013’ to ‘between May and June 2013’ in the ‘Grounds’ section”.[4] The EPO was subsequently reissued on 27 June 2013 at 8.39 a.m. (“First 27 June EPO”) to Yeats & Associates Pty Ltd (“Yeats & Associates”).[5] This EPO replaced the 17 June EPO but was wrongly issued to Yeats & Associates (Appellant in Appeal 2583/13). It should have been issued to Yeats Consulting trading as Sedgman Yeats. It is not in dispute that “Sedgman Yeats” is the trading name for Yeats Consulting (Appellant in Appeal 2582/13). The 17 June 2013 EPO correctly named Yeats Consulting as the relevant entity.
[4]DLS-6 to the Affidavit of Smith, pages 60-62 (2582/13).
[5]BGR-1, pages 8-14 (2583/13).
A further typographical error was identified in the First 27 June EPO[6] in that it still referred wrongly to the period ‘January and June 2013’ instead of May and June 2013’.[7] Accordingly, a new EPO was issued that same day, 27 June 2013, at 1.30 p.m. (“Second 27 June EPO”).[8] It was also again erroneously addressed to “Yeats & Associates Pty Ltd trading as Sedgman Yeats”. The Second 27 June EPO was attached to a covering email which drew the recipient’s attention to the typographical error found in the First 27 June EPO, and indicated that the First 27 June EPO should be disregarded.[9]
[6]Affidavit of Smith, paragraph 18 (2583/13).
[7]Affidavit of Rix, page 15 (2583/13).
[8]DLS-6 to the Affidavit of Smith, pages 60-66 (2583/13).
[9]BGR-1 to the Affidavit of Rix, page 15 (2583/13).
How the mix up occurred
The 3 EPOs issued on 17 June EPO (one) and 27 June (two) were issued by a Mr Daniel Smith, an employee of the Council in the capacity of Development Compliance Team Leader.[10] Mr Smith said he failed to correctly identify, in both the First and Second 27 June EPOs, Yeats Consulting as the entity for Sedgman Yeats because he mistakenly believed Yeats & Associates to be the company that traded under the business name Sedgman Yeats.[11] He says a search of the business name Sedgman Yeats revealed that the organisation that traded under the name “Sedgman Yeats” was “The Trustee for Yeats Consulting Unit Trust”. A further search of the organisation name “The Trustee for Yeats Consulting Unit Trust” produced a list of 20 results, the first two of which showed “Yeats Consulting Pty Ltd”. However, these two results each provided a different organisation number. The first result was chosen and an organisational search on that organisation specified Yeats & Associates Pty Ltd as the relevant entity.
[10]DLS-1 to the Affidavit of Smith, paragraphs 1-2 (2583/13).
[11]Affidavit of Smith, paragraph 17 (2583/13).
Unfortunately for the Council, the two companies, Yeats Consulting Pty Ltd and Yeats & Associates Pty Ltd, had formerly traded under one another’s names, later swapping their business names. This switching of names clearly created the confusion which led to the First and Second 27 June EPOs being issued incorrectly.[12]
[12]Affidavit of Yuen, paragraph 3 (2583/13).
The Appellants make the point that the fact that Yeats & Associates does not carry on the business of Sedgman Yeats was not only easily ascertainable but obviously known to Council at the time of the issue of the First 27 June EPO, given that the 17 June EPO correctly identified Yeats Consulting as the entity trading under Sedgman Yeats. The Appellants subsequently filed these appeals on 17 July 2013.
JURISDICTIONAL ISSUE
The Council’s argument re invalidity of Appellants’ appeals
Before considering the Appellants’ costs arguments, it is necessary to deal with a jurisdictional issue raised by Council. The Council says this Court at all times lacked jurisdiction to hear the subject appeals because the Appellants were not entitled to commence the appeals. Consequently they are not entitled to their costs.
Council points to the EPA’s requirement[13] that a person dissatisfied with an “original decision” first apply for an “internal review” of that decision prior to lodging an appeal to the Court. The Appellants concede they did not apply for an internal review of the decisions made to issue the EPOs. Council argues the Appellants thereby had no right to appeal as they did on 17 July 2013. It follows, the Council says, that a party that institutes an invalid appeal may not recover its costs of that invalid appeal. The Council says the Appellants must have been aware of these review procedures and requirements, as the relevant provisions of the EPA were attached to the EPOs, and mentioned therein, and so were specifically drawn to their attention.[14]
[13]See paragraphs [15] – [17] (infra).
[14]See for example the Affidavit of Smith, pages 64-66 (2583/12).
The relevant sections outlining the procedural requirements for instigating an internal review of a decision are set out in Part 3 of Chapter 11 of the EPA.
Internal review of “original decisions”
For a decision to be subject to internal review it must be an “original decision” as per s 519:-
“519 Original decisions
(1) A decision mentioned in Schedule 2 is an original decision”.
The issue of an EPO pursuant to s 358 is within Schedule 2, and is therefore an “original decision” within s 519. Section 521(1) permits a “dissatisfied person” to apply for a review of an “original decision”. A “dissatisfied person” is defined in s 520. Subsections of ss 520 and 521 relevantly provide:-
“520 Dissatisfied person
(1) A dissatisfied person, for an original or review decision, is—
(a) …
(b) …
(c) ……
(i) if the decision is about an ERMP direction, environmental investigation or environmental protection order – the recipient.”
“521 Procedure for review
(1) A dissatisfied person may apply for a review of an original decision. (emphasis added)
(2) The application must—
(a) be made in the approved form to the administering authority within—
(i) 10 business days after the day on which the person receives notice of the original decision or the administering authority is taken to have made the decision (the review date); or
(ii) the longer period the authority in special circumstances allows; and
(b) be supported by enough information to enable the authority to decide the application.
(3) …
(4) …
(5) If the administering authority is satisfied the applicant has complied with subsections (2) and (3), the authority must, within the decision period—
(a) review the original decision; and
(b) consider any submissions properly made by a recipient of the review notice; and
(c) make a decision (the review decision) to—
(i) confirm or revoke the original decision; or
(ii) vary the original decision in a way the administering authority considers appropriate.
(6) The application does not stay the original decision.
(7) The application must not be dealt with by—
(a) the person who made the original decision; or
(b) a person in a less senior office than the person who made the original decision. (emphasis added)
(8) Within 10 business days after making the review decision, the administering authority must give written notice of the decision to the applicant and persons who were given notice of the original decision.
(9) The notice must—
(a) include the reasons for the review decision; and
(b) inform the persons of their right of appeal against the decision.
(10) …
(11) …
(12) This section does not apply to an original decision made by—
(a) for a matter, the administration and enforcement of which has been devolved to a local government—the local government itself or the chief executive officer of the local government personally; or
(b) for another matter—the chief executive personally.” (emphasis added)
Section 520(1)(i) makes it clear that the Appellants, as the recipients of EPOs, are considered “dissatisfied person[s]”, and are therefore eligible to apply for an internal review of the decisions made to issue those EPOs, being “original decisions” as discussed above.
Appeals to this Court
Section 531[15] outlines when a dissatisfied person may appeal to the Court:-
“Subdivision 2 Appeals to Court
[15]Section 531 was amended by s 45 of Act No. 16 of 2012. The Council issued the EPOs in mid 2013 but erroneously attached the outdated section, as reproduced above. However, the substance of the section remains unchanged so I will refer to the outdated section for the sake of consistency.
531 Who may appeal
(1) A dissatisfied person who is dissatisfied with a review decision, other than a review decision to which subdivision 1 applies, may appeal against the decision to the Court.
(2) The chief executive may appeal against another administering authority’s decision (whether an original or review decision) to the Court.
(3) A dissatisfied person who is dissatisfied with an original decision to which section 521 does not apply may appeal against the decision to the Court.” (emphasis added)
It is clear from s 531(1) that an appeal to the Court may only be made after the original decision has been reviewed (“review decision”), unless s 521 does not apply in terms of s 531(3), in which case the dissatisfied person may appeal directly to the Court from the original decision. That is, if s 521 applies, an internal review of the decision is a prerequisite to an appeal.
The purpose of the internal review procedure, Council says, is to identify and resolve technical errors of the type present here, as evidenced by the explanatory notes which first introduced the notion of an internal review.[16] Those notes refer to what was then s 201, the equivalent of s 521, and provide that “the intent of this provision is that, whilst matters of policy may not be resolved by the review of a decision, technical mistakes or misunderstandings may be resolved without reference to the court”.[17] However, it is not, Council says, designed for decisions made by the Council’s most senior officer (CEO), where the only recourse is to Court, there being nobody higher in the chain to review that decision.
[16]See explanatory notes, Part 3 – Review of decisions and appeals, Division 2 – Internal review of decisions, page 36.
[17]Ibid.
Reference may be had to the explanatory notes under the Acts Interpretation Act1954 (“AIA”). Section 14A(1) provides that “in the interpretation of the provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation”. Section 14B allows the use of extrinsic material in interpreting a provision of an Act. Section 14B(3)(e) specifically contemplates an explanatory note.
It is clear from the explanatory notes that the internal review process was contemplated specifically for such a technical error as has occurred here, and there can be no doubt it would have remedied the error. It is not in dispute that the internal review process is the appropriate course of action where a technical error is present. Rather, the issue is whether, depending on the applicability or otherwise of s 521, the Appellants were entitled to circumvent the internal review process and appeal to the courts directly.
Does s 521 apply?
The Appellants argue s 521 does not apply by virtue of s 521(12), which for convenience I set out again:-
“(12) This section does not apply to an original decision made by—
(a) for a matter, the administration and enforcement of which has been devolved to a local government—the local government itself or the chief executive officer of the local government personally; or
(b) for another matter—the chief executive personally.” (emphasis added)
Under s 98 of the Environmental Protection Regulation 2008 (“EPR”) the issue of an EPO under s 440ZG is a matter, the administration and enforcement of which has been devolved to the local government. It provides:-
“98 Environmental nuisance
The administration and enforcement of the following provisions of the Act is devolved to each local government for its local government area—
(a) section 440;”
Therefore, the issue of EPOs under s 440ZG has been devolved to the Logan City Council as the local government, and so s 521(12)(a) operates such that s 521 does not apply to an original decision made by Logan City Council itself or the CEO personally. Section 521(12)(b) reinforces the fact that an original decision made by the CEO personally is not subject to internal review.
The basis for the Appellants’ argument against the applicability of s 521 is that Mr Smith’s signature on each EPO was accompanied by the words “on behalf of Chris Rose, Chief Executive Officer”.[18] That, it is said, on its face, identifies the CEO of the Logan City Council as having made the decisions to issue those documents. As against that, the Council contends it was Mr Smith who, in the context of exercising his authority as a delegated officer of the Council, made the decisions to issue the EPOs.
[18]See for example the Affidavit of Yuen, page 8 (2583/12).
The question then becomes: were the decisions to issue the EPOs made by Mr Smith exercising his discretion as a Council delegated officer, or were they the decisions of the CEO or alternatively the Logan City Council itself? In answering this, it is necessary to consider the extent of Mr Smith’s authority as delegated to him by the Council.
Council’s delegation of authority to Mr Daniel Smith
Section 518 of the EPA permits an administering authority to delegate its authority to an appropriately authorised entity or person:-
“518 Delegation by administering authority
(1) An administering authority may—
(a) if the authority is the chief executive—delegate the authority's powers under this Act to—
(i) an authorised person or public service officer; or
(ii) a local government; or(b) if the authority is a local government—by resolution, delegate the authority's powers under this Act to an appropriately qualified entity.
(2) ….”
Schedule 4 of the EPA defines administering authority as:-
“(a)for a matter, the administration and enforcement of which has been devolved to a local government under s 514—the local government; or
(b) for another matter – the chief executive.”
Section 514 of the EPA provides:-
“(1) The Governor in Council may, by regulation, devolve to a local government the administration and enforcement of—
(a) the whole or part of an environmental protection policy; or
(b) the issue of environmental authorities; or(c)another matter under this Act (other than Chapter 2 or Chapter 7, Part 8).
(2)….
(3)On the commencement of the regulation—
(a)the local government becomes the administering authority for the devolved matter.”
The issue of an EPO clearly falls under s 514(1)(b). The administration and enforcement of EPOs pursuant to s 440 was devolved by regulation to the local government, as discussed above, by s 98 of the Environmental Protection Regulation 2008. Thus the Logan City Council as the “local government” is an administering authority for the purposes of s 518(1)(b) and may delegate by resolution its powers under the EPA to an appropriately qualified entity.
Section 24A(1)(e) of the AIA allows an appointment of a person to exercise a power to be made by appointing a specified officer, or the holder of a specified office, by reference to the title of the office concerned. Exhibited to Mr Smith’s affidavit[19] are the relevant extracts of the minutes of the Council’s meeting on 7 May 2013 and the report of the Environment and Sustainability Manager dated 18 April 2013 referred to in the minutes, which delegate to Development Compliance Team Leaders the authority to issue EPOs in accordance with s 358.[20] Mr Smith has also given evidence that the Council, under s 518 of the EPA, delegated such authority to him as a Development Compliance Team Leader.[21]
[19]Document 11 (2583/13).
[20]Affidavit of Smith, pages 7, 10 and 40-52 (see specifically pages 40, 44 and 49) (2583/12).
[21]Affidavit of Smith, paragraphs 14 (2583/13).
Specifically, the delegation permits a Delegated Officer to issue an EPO to a person:-
“(a)if the Delegated Officer is satisfied that one or more of the matters set out in section 358 (When order may be issued) of the Act apply; and
(b)the environmental protection order complies with section 360 (Form and content of order) of the Act.”[22]
[22]Affidavit of Smith, page 44 (2583/13).
The delegation then outlines the procedures a Delegated Officer must follow in deciding to issue an EPO:-
“Before deciding to issue an (EPO), the Delegated Officer must consider the standard criteria in accordance with section 359 (Standard criteria to be considered before issue of order) of the Act;
The Delegated Officer must ensure that the form and content of the (EPO) is in accordance with section 360 (Form and content of order) of the Act.”[23]
[23]Affidavit of Smith, page 49.
It is helpful to recall that an “original decision” is defined under Schedule 2 of the EPA as the “issue of (an) environmental protection order”. Clearly, Mr Smith was authorised to issue the EPOs to the Appellants, and therefore to have made the “original decisions” to do so. The onus is on the Appellants to establish that it was the CEO personally, or the local government itself, who decided to issue the EPOs instead.
Were the decisions to issue the EPOs made by either the Council or the CEO?
Appellants’ arguments
I note firstly that the Appellants have not argued the decisions were made by the Council itself. However, the issue of a Council-made decision under s 521(12)(a) was raised briefly by the Council at hearing. Also, the issue of a CEO-made decision is considered within s 521(12)(a) in the same breath, so I will consider both possibilities.
The premise of the Appellants’ argument is that the words “on behalf of Chris Rose, Chief Executive Officer” must be given some meaning on the face of the document otherwise they are superfluous. They contend that, irrespective of who actually made the decisions, it is the document itself on its face that gives rise to the jurisdiction of the Court. Although Mr Smith may have decided to issue the EPOs, the Appellants say, the form of the EPO itself, specifically the inclusion of the words “on behalf of Chris Rose, Chief Executive Officer”, presents as a personal decision of the CEO which is merely being communicated by Mr Smith.
Alternatively, they argue the EPOs could be read as Mr Smith having made the decisions but the CEO as having adopted those decisions, thereby making them the CEO’s personal decisions. The Appellants contend that if it were Mr Smith making the decisions he would have simply signed ‘Daniel Smith, Development Compliance Team Leader’. Similarly, if he were exercising the authority delegated to him by the Council he would have indicated this by signing ‘on behalf of the Logan City Council’. Further they say that, unlike the Council employee Ms Esther Baklis, who emailed the First and Second 27 June EPOs to the Appellants, and who did not have a Council delegation herself, the employees with delegated authority could, and did, sign on behalf of the CEO. They draw attention to the correspondence dated 25 June 2013 between the Appellants and a Council officer, Mr Shane Mansfield, responding to issues raised by the Appellants in relation to the 17 June EPO.[24] Just as with the EPO documents, the correspondence was signed by Mr Mansfield as a City Standards Manager “on behalf of Chris Rose, Chief Executive Officer”.
[24]Affidavit of Rix of 20 Sep 2013, page 13 (2582/13).
As to the extracts of the provisions regarding internal review and appeal procedures that were attached to the EPOs, the Appellants argue the appeal provisions would not have been included unless an appeal were possible. Furthermore, they say the inclusion of s 521(12) among the attached internal review provisions is consistent with the decision having been made by the CEO, which renders s 521 inapplicable and an appeal the appropriate course of action. Finally, the Appellants say any ambiguity surrounding the documents ought not to be construed in favour of the Council by virtue of the contra proferentem doctrine.
Council’s arguments
The Council submits that a face value reading of each EPO makes it clear that the orders have been issued by the Logan City Council acting through Mr Smith as its delegated officer. As an example, the first paragraph of the First 27 June EPO is as follows:-
“Take notice that the Logan City Council (Council) as the administering authority within the terms of the Environmental Protection Act 1994 (the Act), having considered the Standard Criteria and the provisions of Section 358 of the Act, issues this Environmental Protection Order to you”.[25]
That Mr Smith signed “on behalf of Chris Rose, Chief Executive Officer” is simply evidence, Council says, that he is, as are all Council employees, technically employed by and answerable to the CEO. Council says this cannot be construed as the CEO having personally issued the EPOs.
[25]See for example the Affidavit of Smith, page 54 (2583/13).
Council then points to the second page of the EPO, under the “Grounds” heading, which once again refers to the Logan City Council. It begins:-
“The Environmental Protection Order is issued on the following grounds:
1. The Council is satisfied on reasonable grounds that the person is contravening section 440ZG of the Act and Council seeks to secure compliance with section 440ZG at the premises”.[26]
[26]Ibid page 6.
Such references as “the Council is satisfied”, “the Council…having considered”, “Council seeks to secure compliance”, and the Council “issues this (EPO)”, make it abundantly clear, the Council submits, that it could not have been the CEO personally who issued the EPOs. To the contrary, the Council says, the orders were evidently issued by the Council acting through its delegate Mr Smith, who himself decided to issue and sign the orders on its behalf.
The Council submits this interpretation is further supported by, and must be considered in the context of, the inclusion of the internal review provisions along with the EPOs. In fact, the EPO document ends by specifically stating that an internal review is the next appropriate step. It reads as follows:-
“You may apply for a review of the decision to issue an Environmental Protection Order. Information regarding reviews and appeals is attached to this order. Such application is to be in writing and include sufficient information to allow a review to be undertaken. All correspondence is to be addressed to (the CEO)”.[27]
The Council says these instructions would not have been given if an internal review were impossible. It follows, Council says, that it would have been illogical to conclude that the CEO had decided the matter personally.
[27]Affidavit of Rix, page 57 (2583/13).
Discussion of arguments
The Appellants’ submission that it is the manner in which the decision is conveyed that gives rise to the jurisdiction, rather than the fact of who actually made the decision, which they say is irrelevant, is untenable. It is clear from s 521(12) that the decision must have actually been made by either the local government itself or the CEO personally. That fact may not be discarded in favour of the Appellants’ misconstruction, no matter how understandable, of the documents.
Mr Smith has deposed to issuing the 17 June EPO,[28] the First 27 June EPO,[29] and the Second 27 June EPO[30] in accordance with his delegated authority after personally inspecting the Land on at least eight occasions. I accept his evidence, as it seems only logical given his delegation and involvement in the matter that he would have done so. It is not in dispute that Mr Smith “had the primary and day-to-day conduct of the matter the subject of this appeal since January 2013”.[31]
[28]Affidavit of Smith, paragraphs 9, 14 and 16 (2582/13).
[29]Affidavit of Smith, paragraph 16 (2583/13).
[30]Ibid, paragraph 18.
[31]Ibid, paragraph 3.
Accordingly, as the original decisions are made by whoever issued the documents,[32] it is Mr Smith who made the decisions as a Delegated Officer, and not the local government itself or the CEO personally.
[32]EPA, schedule 2.
In any event, there is little, if any, evidence on the face of the document that even suggests the decision came from the CEO personally. As I have said, the Appellants argue the wording “on behalf of Chris Rose, Chief Executive Officer” indicates the decision came from the CEO, and hence it must be given meaning otherwise it is superfluous. I do not agree. The correct construction is that advanced by the Council, namely that those words are merely indicative of the fact that Mr Smith and Mr Mansfield work under the CEO, and also serve to identify official correspondence. This is evident from the covering email of 17 June 2013[33] sent by Mr Smith to the Appellants attaching the 17 June EPO. This email contained a footer, the second paragraph of which was as follows:-
“This email is an informal Council communication. The Council only accepts responsibility for information sent under official letterhead and duly signed by, or on behalf of, the Chief Executive Officer.” (my emphasis)
Clearly, all formal Council communication must be “on behalf of the Chief Executive” as a matter of course. Obviously this does not mean the CEO has personally attended to all such communication and the matters pertained to therein. I note also that the CEO, Mr Rose, was not copied into that email whereas three other Council employees were, one of whom was Ms Esther Baklis. One might consider it impractical for the CEO to personally issue EPOs on a routine basis in any event, hence the necessity to delegate authority. I simply observe this, not rely on it in my decision.
[33]Affidavit of Smith, page 5 (2582/13).
There was nothing else within the documentation to suggest the CEO personally issued them. The only other reference to the CEO is a direction that any request for an internal review be addressed to the CEO, but this in itself suggests the CEO did not make the decision, otherwise an internal review would be impossible. The attachment of the appeal provisions does not equate to a right of appeal, but instead was likely included to notify the recipients of the possibility of appeal should the internal review fail to satisfy them.
Nor can it be maintained that the Logan City Council itself decided this matter, as opposed to its delegated office Mr Smith, for there is no evidence of a Council resolution to establish this. Exhibited to Mr Smith’s affidavit are the minutes of the 674th ordinary meeting of the Logan City Council held on 7 May 2013,[34] but this primarily concerned amendments to delegations of authority which, as outlined above, empowered Mr Smith to act with respect to EPOs.
[34]Affidavit of Smith, page 7 (2582/13).
Conclusion
The Appellants have failed to establish that the Logan City Council itself or its CEO, Mr Chris Rose, personally decided to issue the Environmental Protection Orders the subject of Appeals 2582/13 and 2583/13. It follows that, by virtue of ss 521(12) and 531 of the EPA, this Court did not have jurisdiction to hear those Appeals. An appellant is not entitled to recover costs for an invalidly instituted appeal. Accordingly, these Applications for costs brought by the Appellants must fail.
The order of the Court is that the Applications brought by the Appellants are dismissed.
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