3. Geelong Environment Council and Teris (Australia) Pty Ltd must file with the Tribunal and serve on all other parties any Statement of Grounds upon which they wish to rely on or before 12 January 2000.

4. Any party who desires to call an expert witness must file with the Tribunal and serve a copy of the report of such expert on all other parties on or before

19 January 2000. The report is to stand as the evidence in chief of that witness subject to the leave of the Tribunal for that witness to give further evidence in chief.

5. The Tribunal has allocated the following days and times for the matters to be heard at 55 King Street, Melbourne:

_____________________________ ____________________________

Mr G Robinson appeared on behalf of the Environment Protection Authority.

Mr P Merrylees of Dunhill Madden Butler, Solicitors, appeared on behalf of the Applicant.

Mr R Jameison of Blake Dawson Waldron, Solicitors, appeared on behalf of Respondent Adelaide Brighton Cement Ltd.

Mr C Barlow of Middletons Moore and Bevins, Solicitors, appeared on behalf of Respondent Paver Marketing Pty Ltd.

Mr M Payton appeared on behalf of the Environment Protection Authority.

Mr P Merrylees of Dunhill Madden Butler, Solicitors, appeared on behalf of the Applicant.

Ms R Peavey of Blake Dawson Waldron, Solicitors, appeared on behalf of Respondent Adelaide Brighton Cement Ltd.

Mr C Barlow of Middletons Moore and Bevins, Solicitors, appeared on behalf of Respondent Paver Marketing Pty Ltd.

1. This is an application by Brambles Australia Ltd pursuant to section 33B of the Environment Protection Act 1970. Brambles submits it is a "person whose interests are affected" by the Environment Protection Authority's grant of a Works Approval to both Power Marketing Pty Ltd and Adelaide Brighton Cement Limited.

2. The matter has come before the Tribunal on a preliminary point raised by both Respondents that Brambles applications be struck out on the basis that Brambles has no standing to bring an application for review.

3. The Respondents request Brambles' application be struck out on the basis that Brambles does not fall within the requirements of section 33B of the Environment Protection Act 1970 in that it is not a person "whose interests are affected".

4. Section 33B states:

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.

5. The wording, "whose interests are affected", in this section was substituted by Schedule 1 clause 27 Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 which came into force on 1 July 1998. That Act amended various Acts as a consequence of the coming into force of the Victorian Civil and Administrative Tribunal Act 1998 which also came into force on 1 July 1998.

6. Prior to the substitution, the relevant words, for the purposes of this matter were "who is aggrieved" and in this respect the Tribunal was taken to a number of cases, of which more will be said later. The change of wording to what is now "whose interest are affected" brought the Environment Protection Act 1970 into line with the wording adopted in what was then new legislation regarding VCAT.

7. The Victorian Civil and Administrative Tribunal Act 1998 provides:-

Section 5

If an enabling enactment provides that a person whose interests are affected by a decision may apply to the Tribunal for review of the decision-

(a) `interests' means interests of any kind and is not limited to proprietary, economic or financial interest;

(b) a person may apply to the Tribunal whether the person's interests are directly or indirectly affected by the decision and whether or not any other person's interests are also affected by the decision.

8. Brambles submitted the words "whose interests are affected" in section 33B should be given wide meaning, whereas the Respondents contended the amendment has resulted in a more narrow interpretation of persons who could apply under section 33B.

9. As there is no definition of the words "whose interests are affected" in the Environment Protection Act 1970, Brambles relies on the definition of "interests" contained in section 5(a) of the Victorian Civil and Administrative Tribunal Act 1998. This definition it was contended could not be wider: interests of any kind and is not limited to proprietary, economic or financial interests; although in interpreting this as a wide meaning "interests of any kind and not limited", Brambles contended that in fact it relied on the effect on its economic and financial interest.

10. In giving this definition its literal meaning it does indicate that the interests can be of any kind and should not be limited to only proprietary, economic or financial interests which are the three main areas where interests can be affected as a result of a decision.

11. Section 5(b) of the Victorian Civil and Administrative Tribunal Act 1998 indicates that a person may apply whether the "person's interests are directly or indirectly affected". In this respect Brambles relies on it being a part of the waste industry and the granting of the works approval is likely to affect indirectly its interests, namely its economic and financial interests.

12. Brambles maintains its interests are affected economically and financially. Brambles contends that it is a person whose interest are affected. It says it is part of the waste industry. Failure by the Environment Protection Authority to require a level playing field in not requiring, in a works approval, demonstration of the use of commonly available technology, as required by legislation is a threat to the financial viability of other reputable operators, particularly Brambles.

13. Further if waste is allowed to be disposed of to an unsuitable facility which may not meet the required design standard to ensure there is no environmental hazard and pollution caused by the use of such a facility, will bring the waste industry and the Environment Protection Authority into disrepute. No longer will the waste industry of which Brambles is a part , be able to rely upon its EPA licence status.

14. The Respondents contend that the words "whose interests are affected" should be given a restricted meaning. They say that prior to the substitution, the wording was "any person who feels aggrieved". In substituting the wording to bring it into line with the words used in the Victorian Civil and Administrative Tribunal Act 1998 it was not the intent of Parliament to widen the ability to seek a review. It is always necessary to look at the legislation the right to apply is in and consider the intent of the legislation.

15. Both Brambles and the Respondents relied on the decision in Australian Conservation Foundation v Environment Protection Appeal Board [1983] VicRp 34; [1983] VR 385. This case involved a discussion of the wording "any person who feels aggrieved" in the context of the then section 32(5) Environment Protection Act 1970 the forerunner of section 33B. Consideration was also given to the meaning of the phrases "any person interest" and "to person aggrieved".

16. The Australian Conservation Foundation case considered whether the ACF had standing to bring an appeal against the granting of a licence by the EPA. The Environment Protection Act 1970 required that a person could appeal a decision of the EPA if he/she "felt aggrieved by the decision" and had originally objected to a preliminary determination by the EPA to grant a licence or had attended any conference called under section 20(6C) of the Environment Protection Act 1970. The Act did not state who could make such an objection it did provide at section 20(6B) for publication of a preliminary determination notice to which "any person interested in the preliminary determination may object in writing".

17. Brambles submitted that a valid objection was required before a person could be considered to be aggrieved. To have a valid objection the person must be a person interested and a person interested was given a wide meaning. Young CJ in the Australian Conservation Foundation case considered the words had a weak meaning and in so doing gave a wide interpretation to the words "no narrow meaning of interest is intended", in considering the words had a weak meaning and a wide interpretation His Honour gave three reasons, any person interested was used in the popular sense, there was wide notification of the application by publication in newspapers in Victoria with no direction to any particular person and thirdly the Environment Protection Authority did not have the legal expertise to consider the state of a person's interest at the time of lodging an objection.

18. Young CJ considered at pages 393 and 394 that the:

... word `interested' in the phrase `any person interested' is to be given a very weak meaning with the result that any member of the public may object in writing to a preliminary determination of the Authority. My reasons for drawing this inference are, first, that, Parliament having prescribed precisely what the notice should contain, there is nothing to direct the public's attention to the fact that "any person interested" is used in other than a popular sense. Secondly, the fact that the notice is to be published in a newspaper circulating generally in Victoria rather than in some way calculated to bring it to the attention of persons in a particular locality suggests that no narrow meaning of interest is intended. Thirdly, the notice of objection in writing is to be made to the Authority which is directed to consider it. The Authority is composed, by virtue of s. 6(1) of the Act, of two persons expert in and holding appropriate qualifications in environmental control and one person of suitable administrative skill and experience. Thus no member is , like the chairman of the Environment Protection Appeal Board, required to be a barrister and solicitor, and whilst the Authority may no doubt obtain legal advice, it seems unlikely that Parliament intended the Authority to have to examine any objections received for the purpose of ensuring that the objector had an appropriate interest and, moreover, to do so without any precise guidance as to what interest it should regard as appropriate or adequate...............my conclusion is, for the reasons I have endeavoured to express, that any member of the public, busybody or not, is entitled to object in writing to a preliminary determination of the Authority.

19. The Respondents contend that this wide meaning under the Australian Conservation Foundation case would have given the Applicant rights to apply under the section before it was amended, any such right has now however been abolished. The 1998 amendment has altered the wide and generous interpretation previously given to the phrase "who feels aggrieved by the decision". The intent of Parliament was to ensure the criteria for making applications were similar in each of the Acts within the jurisdiction of the Tribunal. This common criteria now requires the Applicant to demonstrate that the Applicant has an interest, the interest is actually affected by the relevant decision to be reviewed. The interest is affected not may be affected. This is therefore a restricted meaning.

20. The words are also qualified by the words used in section 33B(2). To this extent the Respondents considered the wording in section 33B(1) have the same meaning as the words used in section 33B(2) and qualified the meaning. Whereas Brambles relied on the words of Murray J in the Australian Conservation Foundation case when he considered section 32(5)(b) the earlier provision to section 33B(2)(b) that such grounds of appeal gave broad standing. These grounds Murray J considered were consistent with the watchdog status given to members of the public within the general scheme of the Act.

21. Murray J in the Australian Conservation Foundation case having concurred with the Chief Justice, also considered that the grounds of appeal established a need for a broad definition of standing:

Upon this basis ground (b) would seem to serve no useful purpose if it is limited to `persons aggrieved' in the restricted sense because such persons could always and more easily resort to ground (a). It therefore follows in my view that the very wide terms of (b) are intended to be available to any person, provided of course that he had lodged written objection to the preliminary determination in accordance with the sub-section.

It is difficult to suppose that `persons interested' in this context means anything less than `persons minded to do so'. A wide interpretation of the expression is consistent with the general scheme of the Act dealing as it does with the broadest aspects of public welfare in the protection and use of the environment.

22. Murray J went on to say that the broad terms of the grounds lent weight to the view that they "are intended to be available to any person".

23. Brambles further relied upon the decisions of Re Pell and Raffles and Bingo Permits Board; Re Bates and Raffles and Bingo Permits Board (1989) 3 VAR 164, a decision of Judge Jones then President of the Administrative Appeals Tribunal, the forerunner of VCAT. Judge Jones held in considering section 27 of the Administrative Appeals Tribunal Act 1984, the forerunner of section 5 of the Victorian Civil and Administrative Tribunal Act 1998, that the wording "a person whose interests are affected by the decision" should be given a broad meaning in so doing he considered in that particular case that a competing commercial interest of a Bingo Centre was an interest affected within the meaning of section 27.

24. Nathan J in Murragong Nominees Pty Ltd v MMBW (1985) 60 LGRA 210 held that a "person affected" and a "person interested" were "similar if not synonymous" and that "person affected" was broader in scope than "person aggrieved". In giving this wide meaning Nathan J considered a person affected could be one whose financial or aesthetic interests or whose enjoyment of life are touched.

25. The court in the Australian Conservation Fpundation case considered that in view of the nature of the legislation that as well as persons with a material interest also others as concerned members of the public would also have an interest in such legislation to protect the environment.

26. The Respondents contend that in looking at the purpose of the legislation the Environment Protection Act 1970 is "to make further Provision for the Protection of the Environment". The Act introduces a State body namely the Environment Protection Authority to take on a "public role" as do other State bodies to protect community interests. In the Respondent's view it is difficult to envisage that the Act would recognise the interest of a commercial competitor such as Brambles. Such an interest is not relevant to the stated objects of the Act and is in conflict with the interests which the Act promotes.

27. The Respondent relied upon the decisions in Murragong Nominees Pty Ltd v MMBW (1985) 60 LGRA 210; Comptroller - General of Customs v Members of Administrative Appeal Tribunal [1994] FCA 1148; (1994) 123 ALR 140; Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd & Ors [1994] FCA 996; (1994) 121 ALR 373; Re Marine World Victoria Ltd and Minister for Arts, Heritage in the Environment [1986] AATA 203; (1986) 10 ALD 262; United States Tobacco Co v Minister for Consumer Affairs [1988] FCA 213; (1988) 20 FCR 520.

28. In each of these decisions the Court or Tribunal considered the context of the legislation before concluding whether or not a person was "a person whose interests are affected by the decision". In the United States Tobacco case "a person seeking joinder must be able to identify a relevant interest which is his". In the case of Alphapharm the Court in considering the legislation found the commercial interests of Smithkline were relevant to the object of the Act, at page 386 the Court stated "the issue before the decision-maker was the safety of the drug and the appropriateness of its use in humans ... the affairs of Smithkline were irrelevant ..." and at page 387, "... the interest which Smithkline has propounded that of a competitor whose interests would be affected as the drug, if it were registered and placed on the market would compete with cimetidine and reduce its price - is not an interest which the Act recognises for the purposes of s. 60 (2)".

29. The Tribunal considers that it is appropriate to consider the legislation under which an application is heard as well as the enabling legislation. Therefore it is necessary to consider the Victorian Civil and Administrative Tribunal Act 1998 and the definition in section 5 of what the meaning of the words are with reference to the bringing of an application from an enabling enactment. Going to the enabling enactment and reading the definition in terms of the enabling enactment the question is, does the enabling enactment require or confine the meaning of the words by any specific requirement that has to be met before the exercise of rights under section 33B.

30. It was pointed out that under section 19B(3)(b)(iv) of the Environment Protection Act 1970 "any person or body interested in the application may within 21 days of the publication of the notice comment in writing on the application" for works approval. If then section 33B is considered there is no nexus in the Act between the making of the comment and being prerequisite for the lodging of an appeal as was the requirement in the Australian Conservation Foundation case where there standing to bring an appeal was made out once an objection in writing was made.

31. It is considered the meaning to be given to the words "a person whose interests are affected" in section 33B is the same meaning as in section 5 of the Victorian Civil and Administrative Tribunal Act 1998 and that is a wide meaning. "Interests" is given its literal meaning in that section which has a wide meaning of "interests of any kind and is not limited to proprietary, economic or financial". It is submitted Brambles will be affected by economic and financial considerations it says these are potential loss of financial viability and disrepute leading to economic and financial affects. Such concerns that there is a failure to require a level playing field or that the required design standards are not met are valid considerations in a company's consideration as to whether it is economic or financial to continue in such a business.

32. Section 5(b) states a person may apply whether the person's interests are directly or indirectly affected. Does this restrict the application by requiring that there must be shown as a result of the decision, the interests that will be affected either directly or indirectly? The Respondents argue that the interest must be an interest that is more than the general community interest, such general community interest is already protected by the statutory body, the Environment Protection Authority created by the Environment Protection Act. The Respondent submits Brambles does not have a genuine and direct interest, the decision to issue the Works Approval does not directly affect the interest of Brambles. The interest must be as stated by Davies J in United States Tobacco case:

In their context in ss 27 and 30, the words `interests are affected' denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest... however, a person seeking joinder must be able to identify a relevant interest which is his.

33. The Tribunal agrees it is necessary to look at the legislation and the meaning of the legislation. In this case the legislation establishes the Environment Protection Authority and provides it with statutory powers to ensure protection of the environment. The Environment Protection Act as well as establishing the Authority and providing for its powers, functions and duties also is to make "further provision for the protection of the Environment". Such a statement indicates that within the legislation there will be additional provisions apart from those of the Authority itself for the protection of the Environment. This is embodied within the provisions of section 33B which when given a wide meaning to the interpretation of the words used and considering the intent of the legislation allows for as it states in the heading to section 33B "Appeals by third parties".

34. The Tribunal adopts the conclusions reached by Murray J in the Australian Conservation Foundation case that a wide interpretation of the expression a "person whose interest are affected" is consistent with the general scheme of the Act. The current Environment Protection Act requires a notice of an application for works approval is published widely "in a newspaper circulating generally throughout Victoria" (section 19(3)(b)). Any person as a result of seeing this can request information. Any person interested in the application can make a comment in relation to the application, no restriction as to what type of interest that person may have is stated. Following this the Authority may hold a conference to hear comments, this is not however mandatory, although the Authority is required to consider any recommendations which may follow from such a conference. There is however no nexus between these matters or prerequisite as was the situation in the Australian Conservation Foundation case to the lodging of an application pursuant to section 33B. The grounds of application contemplate general watchdog considerations in line with the basis of the Act in incorporating provisions for the further protection of the environment.

35. For the reasons stated the Tribunal dismisses the Respondent's application to have the application for review by Brambles struck out.

36. The Tribunal upon the giving of the oral decision then dealt with the application by Geelong Environment Council to become a party in the 1999/054064 proceedings and by Teris (Australia) Pty Ltd in the 1999/058073 proceedings. The Tribunal was advised neither application was opposed and accordingly the Tribunal allows Geelong Environment Council and Teris (Australia) Pty Ltd to be joined as parties to the relevant applications.

_____________________________ ____________________________