Court of Appeal dismisses claims of procedural unfairness and upholds validity of Environmental Protection Order

by Ian Wright, Nadia Czachor, Daniel Tweedale
30 November 2017

In brief

The case of Bond v Chief Executive, Department of Environment and Heritage Protection [2017] QCA 180 concerned an application for leave to appeal against an earlier decision of the Planning and Environment Court in respect of an Environment Protection Order (EPO) which had been issued against the Appellant.
 
The Court acknowledged that the case involved important questions of general application as to the proper interpretation of the Environmental Protection Act 1994 (EPA). For this reason, the Court granted leave however ultimately dismissed the appeal. 

The EPO and prior decision of the Planning and Environment Court

The Appellant was the Chief Executive Officer and Managing Director of Linc Energy Limited. 
 
Linc Energy Limited operated an underground coal gasification plant at Chinchilla, which had caused environmental harm and contamination to land within its vicinity. 
 
The Respondent issued an EPO to the Appellant in order to ensure that the obligations of Linc Energy Limited to rehabilitate and restore the land were performed. 
 
The Appellant sought an internal review of the Respondent’s decision to issue an EPO, the result of which was that the Respondent confirmed its decision to issue the EPO.
 
The Appellant appealed to the Planning and Environment Court against the Respondent’s decision to issue the EPO and sought the determination of a preliminary point, namely that the EPO was unlawful on the basis that it did not comply with the relevant provisions of the EPA and that the Appellant was denied procedural fairness. 
 
The primary judge dismissed the appeal and held that the EPO was valid. 

The grounds of appeal 

The Respondent sought leave to appeal against the decision of the Planning and Environment Court on the basis that the primary judge had made errors of law in failing to conclude that the EPO was invalid. 
 
The pertinent issue in the appeal was the proper construction of section 521 of the EPA, which states that a dissatisfied person may apply for review of a decision to issue an EPO if an application is made to the Respondent within 10 business days after receipt of the EPO or a longer period that the Respondent has, in special circumstances, permitted. 
 
Relevantly, the Appellant argued that (at [5]):
 
  1. The Respondent was required to determine whether there were special circumstances prior to the issue of the EPO to enable a longer period than 10 business days within which to apply for a review of the decision to issue the EPO. If so determined, the Respondent was required to state a longer period than 10 business days in the EPO. At all material times, the Respondent was of the view that special circumstances were involved but the EPO did not state a longer period than 10 business days.
     
  2. Alternatively, the Respondent failed to make the determination about whether there were special circumstances involved prior to the issue of the EPO, which accordingly failed to state a longer period than 10 business days for making an application for a review.
     
  3. Further, or alternatively, if (as the Respondent contended) it was possible to apply after receipt of the EPO for a longer period than 10 business days within which to apply for a review of the decision to issue the EPO, the EPO did not say so.

Proper construction of section 521 of the EPA

The Court affirmed that the correct approach to the construction of statutory provisions was as set out by the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. Relevantly, the Court observed the following (at [8]):
 
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.
 
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.
 
… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
 
In applying these principles to the interpretation of section 521 of the EPA, the Court held as follows (at [31] and [45]):
 
  • In respect of the Appellant’s first and second contentions, the proper construction of section 521 of the EPA is that the decision as to whether special circumstances exist, and therefore warrant a longer period, is not confined to being made before an EPO issues. 
     
  • In respect of the Appellant’s third contention, it was true that there was no provision in the EPA giving a right to review a decision to refuse a longer period, or give a period longer than 10 business days but still shorter than requested. However, such a decision represented a discretionary decision of an administrative character and would therefore be amenable to judicial review under the Judicial Review Act 1991, which may give rise to a stay being granted to preserve the efficacy of the review proceedings. 
Ultimately the Court held that the grounds attacking the validity of the EPO must fail and upheld the validity of the EPO. 

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.