Clean Ocean Foundation Inc v Environment Protection Authority [2003] VSC 335

The overall goal of this policy is to attain and maintain levels of water quality which are sufficient to protect the specified beneficial uses of the surface waters of the policy area.

7. Directly on-shore from the proposed outfall discharge point is an area of the coastal segment that includes an area used for water based recreation (Clause 7) and for the spawning of aquatic species where the level of water quality required to protect their beneficial use (Clause 8) is defined by water quality indicators and objectives set out in Schedule B of the SEPP.

86. At the time of the hearing before the Tribunal on 20 December 2002 and of the making of the order under appeal on 21 March 2003, the relevant version of the SEPP was the version declared by the Governor in Council on 23 February 1988 to come into effect on 15 March 1988 ("the 1988 SEPP"). Clause 17 of the 1988 SEPP, relied upon in ground 1 of the revised statement of grounds, reads so far as relevant:

The toxicity of waste discharges will be assessed by the [Environment Protection] Authority prior to the granting of works approvals or licences. Where appropriate, toxicity testing will be required.

Where such tests are carried out, the waste shall be deemed to be acutely toxic if more than 50% of a representative test species nominated by the Authority die within a 96 hour toxicity test using 100% waste.

93. The latter portion of the first particular, as originally drafted, and the second to fifth particulars included material relying on the deeming provision which the Tribunal found, rightly as Mr Evans conceded, to be misconceived. As the Tribunal also noted, a deeming provision is not a definition, and the 1988 SEPP contains no definition of "acute toxicity". Mr Evans submitted that the first sentence of the first particular was a statement capable of assessment on the basis of evidence to be called, and that the Tribunal in paragraph 14 of its reasons for decision ("the reasons") had said as much. Accordingly, the matter should be remitted to the Tribunal for hearing and determination in accordance with that ground.

96. Mr Evans conceded that there was a difficulty with that submission arising from the replacement of the 1988 SEPP, with effect from 3 June 2003, by the operation of a document entitled Variation to State Environment Protection Policy (Waters of Victoria) ("the 2003 SEPP") which was declared on that date by the Lieutenant-Governor as the Governor's deputy.

99. The effect of that replacement appears, in the present context, from the decision in Ungar v City of Malvern [2] in which the relevant responsible authority, in the exercise of a discretion conferred upon it by the Melbourne and Metropolitan Planning Scheme, had refused an application for a permit for the use of certain land as a commercial car park. By the time the owner's appeal to the Town Planning Appeals Tribunal against that decision came on for hearing, the planning scheme had been amended, with the result that it was no longer permissible to grant a permit for the use of the land in question for that purpose. The Full Court (Young CJ, Menhennitt and Crockett JJ) found that the Town Planning Appeals Tribunal was correct in disallowing the appeal. The relevant law to be applied was the law as it existed at the time the appeal came to be determined; that is, the amended planning scheme. The institution of the appeal did not entitle the appellant to have his application determined in accordance with the law as it existed at the date on which the appeal was instituted.

102. Accordingly, Mr Evans submitted, if his client were successful and the proceeding were remitted to the Tribunal, the question of whether the first particular was established under section 33B(2)(b)(i) would fall to be determined according to the terms of the 2003 SEPP rather than the 1988 SEPP, which had been in force at the time of the Tribunal's hearing and order. His client's right to have the decision to issue the works approval reviewed under section 33B of the Act remained; but the review must be determined according to the 2003 SEPP. He conceded that the replacement of the SEPP introduced a degree of artificiality into the proceeding before this Court; but nevertheless submitted that the proceeding was in effect a challenge to a document which, even if it could no longer stand, should have been left standing at the time of the review by the Tribunal. I am satisfied that the effect of the 2003 SEPP is a matter for the future; my concern is with the validity of the decision of the Tribunal, taken on the basis of the law as it stood at the time of that decision.

105. I note Mr Molesworth's submission that the first sentence of the first particular cannot be dealt with out of context. However, it seems to me that, although it was sought at the hearing before the Tribunal to justify that sentence on a ground which is conceded to be untenable (and which it is not necessary to canvass here), that should not rule out the possibility that that sentence, standing alone, may be justifiable on some other basis which may provide for the plaintiff an arguable case which should be allowed to be resolved at a full hearing. The gist of the passages cited above from the judgment of Ormiston JA in Rabel is that a claim which is not wholly bad should be allowed to proceed to determination.

109. The sixth and seventh particulars rely on Clause 4 of the 1988 SEPP, which reads:

The overall goal of this policy is to attain and maintain levels of water quality which are sufficient to protect the specified beneficial uses of the surface waters of the policy area.

114. Mr Evans submitted, and I accept, that Clause 4 of the 1988 SEPP must necessarily be read with Clause 13, which commences with the following sentence:

The [EPA] shall ensure that any works approval, licence or licence amendment which is granted is consistent with this policy, and shall refuse any application which is not.

In his submission, the sixth and seventh particulars were, like the first particular as amended, statements which could be proved as matters of fact, if the evidence were available to support them. That was a matter to be determined by the Tribunal on a hearing of the substantive issue under section 33B(2)(b)(i) of the Act.

119. I note that the Tribunal, in the reasons, made no specific reference to those two particulars. Again, I accept that they are statements which may provide for the plaintiff an arguable case which should be allowed to be resolved at a full hearing.

123. The essence of Mr Evans's submission under this head is that the Tribunal's findings of fact as to acute toxicity, in paragraphs 21 and 22 of the reasons, were not based on evidence, but on assertions made on behalf of the respondents. It appears that substantial documentary material was put before the Tribunal by the respondents, and assertions made by counsel for the respondents on the basis of that material. It is clear from the reasons, read with the reasons for the decisions made at the first two directions hearings, that no witnesses were called at any of the directions hearings. Thus the documentary material was unsupported by oral evidence, and untested. I note that in its reasons for the decisions made at the first two directions hearings the Tribunal refers to the need for the parties, at a future directions hearing, to be in a position to specify what expert and other witnesses would be called at the substantive hearing.

126. The findings of fact in question relate to the content of the effluent presently discharged into the ocean at Boags Rocks, and of the effluent expected to be discharged after the carrying out of the works the subject of the works approval. That is a matter for expert evidence. I note that the Tribunal, in paragraph 21 of the reasons, states that the assertions which it relied upon were "not contradicted" and "not challenged". However, as contradiction or challenge would have required expert evidence, and it is clear that the matter of what evidence was to be called was in abeyance at that stage, it is difficult to see how the material could have been challenged by the Foundation at the directions hearings.

129. Section 98 of the VCAT Act provides that the Tribunal is not bound by the rules of evidence and may inform itself on any matter as it sees fit. Those are privileges to be exercised with care, and remembering always that the Tribunal is, by the operation of the same section, bound by the rules of natural justice.

132. In Haberfield v Department of Veterans' Affairs [3] Sackville J was concerned with the provision in section 33(1)(c) of the (Commonwealth) Administrative Appeals Tribunal Act 1975 to the effect that the Administrative Appeals Tribunal was not bound by the rules of evidence. His Honour said, "[That tribunal] is, however, obliged to adopt "fair procedures which are appropriate and adapted to the circumstances of the particular case".

135. In Pearce v Button [4] Lockhart J said that a judge should be slow to exercise a power to dispense with compliance with the rules of evidence "where there is a real dispute about matters which go to the heart of the case". Nothing could go further to the heart of the case than an application to strike out the plaintiff's claim.

138. Mr Molesworth submitted that the Tribunal made its findings of fact as an expert tribunal, thus relying implicitly on the well-known passage from the judgment of Stephen J in Spurling v Development Underwriting (Vic.) Pty. Ltd. [1973] VicRp 1; (1973) VR 1 at 11, which reads:

In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the [Town Planning Appeals] Tribunal's decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.

. . . the essence of an expert tribunal is that it is expected to some extent to bring to bear its own expertise; . . .

However, while the Tribunal, in its Planning List, is by definition expert in planning matters, I have no reason to suppose that, as constituted in the present case, it was necessarily expert in the chemical content of the material to be discharged from the works which are the subject of the works approval.

144. Mr Molesworth further submitted that the Tribunal's decision was based on its findings of fact and therefore the appeal was an appeal on a question of fact rather than a question of law, and accordingly not available under section 148 of the VCAT Act. However, the question before me is the question as to whether the Foundation's application is misconceived or lacking in substance, and section 75(5) of that Act [5] expressly provides that that question is a question of law. Further, the question of whether there was evidence before the Tribunal on which it could come to the conclusion to which it did come is also a question of law.

147. Mr Evans submitted, and I accept, that had it been intended to call evidence of the kind referred to by Ormiston JA in the first passage from Rabel extracted in [11] above, this should have been done on notice. It was an error of law to effectively strike out the application on the basis of findings of fact relying on untested assertions made on behalf of the party seeking to have the matter struck out.

151. For the reasons given, the decision under appeal will be set aside and the matter remitted to the Tribunal, differently constituted, for hearing and determination. Counsel may wish to make submissions as to the form of the orders to be made and as to costs.

[1] [1998] 1 VR 102 at 108 ff

[2] [1979] VicRp 25; [1979] 1 VR 259

[3] [2002] FCA 1579; (2002) 121 FCR 233 at 245

[4] [1986] FCA 51; 8 FCR 408 at 422