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05 May 2009

High bar for environmental groups seeking third party review of EPA works approval decisions

by Sallyanne Everett

Only financial, physical or other like personal interests will be relevant.

A recent decision of the Victorian Supreme Court, Thirteenth Beach Coast Watch Inc v The Environment Protection Authority and Plenary Environment (Barwon) Pty Ltd [2009] VSC 53, places an onerous burden on environmental groups seeking to review decisions of the Environment Protection Authority to grant a works approval under the Environment Protection Act 1970 (Vic).

The case centred on the proper interpretation of the provisions of section 33B(2) outlining third party rights of review in respect of works approval decisions made under the Act. In this matter Clayton Utz represented the proponent, Plenary Environment (Barwon) Pty Ltd, in both the VCAT and Supreme Court proceedings.

The Coast Watch Case

According to its Mission Statement, Thirteenth Beach Coast Watch Inc (Coast Watch) is an organisation established with the purpose of trying to protect the coastal environment surrounding the site of the proposed facility.The Mission Statementincluded as an express vision "[t]o stop the Sewage Sludge Factory that is to be built at Black Rock".

It instituted proceedings in VCAT seeking a review of the Authority's decision to grant a works approval in respect of a proposed biosolids treatment facility adjacent to an existing sewerage treatment works at Black Rock. On review, the Tribunal affirmed the Authority's decision, finding the evidence lead by the Authority and the proponent Plenary Environment (Barwon) Pty Ltd to be "comprehensive and compelling".

Coast Watch appealed the Tribunal's decision in the Supreme Court, arguing that the Tribunal incorrectly interpreted section 33B and wrongly restricted its review of the Authority's decision.

This section affords only limited third party right of review, with any application needing to be based on one of the two specified grounds contained in section 33B(2). The first of these depends on whether the third party's "interests" will be "unreasonably or adversely affected" by the use of the proposed works and the second depends on whether the works will be inconsistent with objectively ascertainable standards of environmental protection.

The first ground is contained in section 33B(2)(a), under which a third party must establish that use of the approved works will result in waste or dangerous substances (including potentially dangerous substances) being dealt with in ways that will "unreasonably and adversely affect the interests, whether wholly or partly, of that person".

The Court held that "interests" has a narrow meaning. Justice Cavanough stated that this is a reference to the "financial, physical or other like personal interests of the particular appellant" and not those that are merely "intellectual, philosophical or emotional" concerns. It is only interests of the former kind "which can intelligibly be said to be capable of being "unreasonably and adversely affected" by the "use" of the proposed works."

When considering section 33B(2) as a whole, he held that the section makes clear that the second ground of review contained in section 33B(2)(b) is an "exhaustive provision" as to the grounds capable of being relied on by a party with no personal stake in the outcome of the proceeding.

Under this section, a third party must establish that use of the works will result in waste or dangerous substances (including potentially dangerous substances) being dealt with in ways inconsistent with relevant State Environment Protection Policy or Waste Management Policy declared for the area or, if no relevant Policy has been declared, in ways that would cause pollution or an environmental hazard as defined under the Act.

These requirements were described by the court as "objectively ascertainable standards of environment protection" that cannot be "replaced or raised or otherwise modified by the environmental standards" of a third party applicant for review.

Accordingly, any elevated standards relied on by environmental or community lobby groups will have no bearing on establishing the requisite grounds of review. In the absence of a financial, physical or similar personal interest, such groups will need to rely on the second ground of review contained in section 33B(2)(b).

Conclusion

Justice Cavanough's decision in the Coast Watch case further limits the opportunity for third party environmental groups to review works approval decisions by the Authority by taking a narrow interpretation of the word "interests" in section 33B(2)(a).

The decision effectively requires third party environmental groups without any personal stake in the outcome to demonstrate that the works, once completed in accordance with the works approval, will breach the very standards by which the Authority is required to assess works approval applications under the Act.

Once the Authority has formed the view that proposed works pass those standards and that a works approval should issue, any environmental group seeking to challenge that decision must establish that the Authority was wrong and that use of the works once completed will be inconsistent with relevant policy declared for the area or would otherwise cause pollution or an environmental hazard.

Clearly this will be a high bar to jump, given the functions and responsibilities of the Authority to ensure that the requisite standards of environmental protection are observed.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.