In brief

The case of Abbot Point Bulkcoal Pty Ltd v Chief Executive, Administering the Environmental Protection Act 1994 [2018] QPEC 18 concerned an application brought by the Respondent, the Department of Environment and Science (DES), for excusatory relief for its failure to comply with the service provisions under the Environmental Protection Act 1994 (EPA) in relation to an environmental evaluation notice (EEN).

The issue to be determined by the Court was whether it should exercise its discretionary powers under section 37 of the Planning and Environment Court Act 2016 to excuse the Respondent's failure to give written notice of its decision, following an internal review of the EEN, within 10 business days as required under section 521(8) of the EPA.

Factual background

On 18 September 2017, the Respondent issued an EEN to the Appellant which required that the Appellant undertake an environmental investigation and submit a report in relation to that investigation to the Respondent by 8 December 2017.

The Appellant requested an internal review of the Respondent's 18 September 2017 decision. On 17 October 2017, a delegate of the Respondent varied the 18 September 2017 decision, which extended the date that the Appellant was required to submit its environmental investigation report to 22 December 2017.

The Respondent provided written notice of its review decision to the Appellant less than 12 hours after the prescribed timeframe. The Respondent therefore failed to comply with section 521(8) of the EPA, which required that written notice be given to the Appellant within 10 business days from the date the review decision had been made. The consequence of the Respondent's non-compliance was that its original decision was deemed to be its final decision.

The non-compliance occurred because of the failure of an officer of the Respondent to send the written notice once he had received a copy of the review decision, which was on the last day the service was required. The officer of the Respondent realised that he needed to send the written notice shortly before boarding a flight, and decided not to send the notice once his flight had landed out of "professional courtesy" because it was, at that point, outside of business hours (see [9]).

On 30 November 2017, the Appellant filed a notice of appeal in relation to the Respondent's original decision and review decision, and sought a stay order to avoid committing an offence for failure to submit its environmental investigation report by 8 December 2017.

Respondent requested that the Court exercise its discretionary powers to waive its non-compliance with the EPA

On 22 February 2018, the Respondent applied for excusatory relief of the Court for its non-compliance.

The Appellant opposed the granting of excusatory relief on the basis that the Respondent had not provided adequate explanation for its delay and there was insufficient justification as to why the Court should exercise its discretionary powers in favour of the Respondent, especially given that the consequence of non-compliance was expressly stated in the EPA.

The Court found that from the time the Appellant's notice of appeal was filed until the Respondent's admission of its non-compliance, the Appellant "had to proceed on the basis that there were live issues in the appeal in respect of the non-compliance" (see [20]).

Court held that the unambiguous consequence of non-compliance stated in the EPA should not be readily avoided by the Court's excusatory powers

The Respondent submitted that the Court should exercise its excusatory powers because the non-compliance was minimal given the delay was less than 12 hours, the non-compliance was not deliberate and arose by reason of mistake, and "no prejudice had been identified by the Appellant that would warrant refusal" (see [44]).

The Respondent also contended that it would be "artificial" for the Court to focus on the Respondent's original decision, which did not reflect the Respondent's current position at the time of the proceeding.

The Court held that the Respondent was not prevented from clarifying whether its original decision or the review decision reflected its current position in its statement of facts and contentions and therefore the Respondent's contention was a "hollow one" (see [43]).

The Court acknowledged that the non-compliance was a mistake. However, it did not accept that the delay was minimal and held that to take such a position would be to ignore the Appellant's legal rights and obligations that arise from the issuing of an EEN. In particular, the delay of the Respondent left the Appellant "exposed [to] the potential commission of offences from 8 December 2017 rather than from 22 December 2017" (see [34]).

The Court referred to the principle in Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd & Another and; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 55, which relevantly states that the Court should "exercise a degree of caution" in using its excusatory powers and the discretion "should not be seen as a remedy to be applied whenever a deemed approval arises by reason of an assessment manager's honest mistake" (see [28]).

Ultimately, the Court was not satisfied that the non-compliance of the Respondent should be excused.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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