CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION

Court of Appeal (WA)|2013-06-24|Before: Ms J, Corboy J, Lure P, Newnes JA, Murphy JA

ECLIPSE RESOURCES PTY LTD -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION [2013] WASCA 152 (24 June 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ECLIPSE RESOURCES PTY LTD -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION [2013] WASCA 152

CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : ECLIPSE RESOURCES PTY LTD -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION [No 2] [2012] WASC 264

Administrative law - Application for prerogative relief - Power to grant a licence under s 57 and to amend a licence under s 59B of the Environmental Protection Act 1986 (WA) - Whether power confined to licensing 'prescribed premises' - Whether more than one licence could be granted in respect of a single premises - Whether power confined to granting a licence on the terms on which it is sought in the application - Whether respondent's delegate considered the substance of the appellant's applications

Environmental Protection Regulations 1987 (WA), reg 5, reg 5J, sch 1

Eclipse Resources Pty Ltd v Kieran McNamara, Chief Executive Officer, Department of Environment and Conservation [No 2] [2012] WASC 264

1 McLURE P: This is an appeal from orders made by Corboy J on 30 August 2012 discharging an order nisi made by him on 28 January 2011 and dismissing the appellant's application for prerogative relief. The appeal raises issues concerning the nature and scope of the power to grant and amend a licence under s 57 and s 59B respectively of the Environmental Protection Act 1986 (WA) (the Act).

2 The appellant operates resource recovery centres at two sites, Abercrombie Road, Postans (the Abercrombie Site) and Wanneroo Road, Neerabup (the Wanneroo Site). The Abercrombie Site and the Wanneroo Site were each licensed under s 57 of the Act.

3 Both Sites, or more accurately, parts thereof, were prescribed premises for the purposes of the Act. Prescribed premises are defined (in s 3(1)) to mean premises prescribed for the purposes of pt V of the Act.

4 The premises specified in sch 1 of the Environmental Protection Regulations 1987 (WA) (the Regulations) are prescribed premises for the purposes of pt V of the Act: reg 5.

5 Part 1 of sch 1 of the Regulations identifies categories under three headings: 'Category number', 'Description of category' and 'Production or design capacity'. The licence for the Abercrombie Site (the 2005 Abercrombie licence) and the licence for the Wanneroo Site (the 2009 Wanneroo licence) related to categories 62, 63 and 67A. As to those categories, pt 1 of sch 1 of the Regulations relevantly provided:

Solid waste depot: premises on which waste is stored, or sorted, pending final disposal or re-use.

Class I inert landfill site: premises on which waste (as determined by reference to the waste type set out in the document entitled 'Landfill Waste Classification and Waste Definitions 1996' published by the Chief Executive Officer and as amended from time to time) is accepted for burial.

Compost manufacturing and soil blending: premises on which organic material (excluding silage) or waste is stored pending processing, mixing, drying or composting to produce commercial quantities of compost or blended soils.

6 Table 1 of the Landfill Waste Classification and Waste Definitions 1996 (the Definitions) referred to in the description of category 63 relevantly provides:

- Contaminated solid wastes meeting waste acceptance criteria specified for Class I landfills (possibly with specific licence conditions)

- Type 2 Inert Waste (with specific licence conditions)

7 It is not necessary for the purpose of these reasons to go to the definitions of the 'types' of waste falling within Class I.

8 In April 2009 and June 2009 the appellant applied to amend the 2005 Abercrombie licence and the 2009 Wanneroo licence respectively. Subject to conditions, those licences permitted the appellant to carry out each category of activity specified in the licence over the whole of the premises the subject of the licence. The amendment applications sought to, among other things, replace the plan attached to each licence with a diagram provided by the appellant identifying a smaller area on which to undertake category 63 activities. The purpose of these amendments was to reduce the area on which category 63 activities on each Site were permitted, with the intention of seeking to reduce the amount chargeable under a waste levy imposed after the grant of the licences.

9 Before the amendment applications had been determined, the appellant applied (online) for a new licence for the Abercrombie Site because, licences under the Act being for a fixed term (s 63) and there being no power to renew, the existing licence was due to expire. The application for a new licence for the Abercrombie Site was in accordance with the appellant's existing licence as varied by the licence amendment application.

10 By letter dated 15 April 2010 the respondent's delegate, Mr P Vasel, advised the appellant that its application for a new licence for the Abercrombie Site had been granted but that the new licence did not incorporate the amendment to reduce the area for category 63 activities. The new Abercrombie licence continued to permit the appellant to carry out all the categories of activity specified in the 2005 Abercrombie licence, including category 63 activities, over the whole of the Abercrombie Site.

11 By letter dated 16 April 2010 the respondent's delegate advised the appellant that he intended to amend the 2009 Wanneroo licence but not to reduce the area for category 63 activities. The category 63 activities continued to be permitted over the whole of the Wanneroo Site. On 13 May 2010 the appellant was issued with an amended Wanneroo licence.

12 The primary judge held that the issue for determination by the respondent was whether the category 63 areas delineated by the appellant in the application for a new licence for the Abercrombie Site and the application to amend the 2009 Wanneroo licence constituted prescribed premises within the meaning of sch 1 of the Regulations [96], [98], [100]. He also held that the respondent had the power to grant a licence over a larger area than that sought in an application under s 57.

13 Section 57 and s 59B are in pt V of the Act.

14 The appellant contends that the primary judge erred:

(1) in deciding that the Chief Executive Officer of the Department of Environment and Conservation (the CEO), when dealing with an application for the issue or amendment of a licence under Part V of the [Act] had the power to determine the boundaries of prescribed premises for the purposes of the [Act];

(2) [o]n the basis of the ... finding that the CEO had exercised the purported power to determine the boundaries of the prescribed premises for the purposes of the [Act], in failing to find that the CEO had exceeded his powers under the [Act];

(3) by failing to find that the CEO had erred, when dealing with applications for the issue and amendment of licences under Part V of the [Act], in failing to address the question whether the permissions sought in the applications for the areas specified in the applications should be granted.

15 A fourth ground of appeal relating to the construction of the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) was not pursued because both parties accepted that any finding made by the primary judge did not bind the parties.

16 The respondent seeks to uphold the decision to dismiss the appellant's application on the following grounds not relied on by the primary judge:

(a) Only one licence can be granted under the [Act] in respect of a single premises;

(b) As each of the Abercrombie Site and Wanneroo Site constitute a single premises, the Respondent's delegate had no power to grant a separate licence in respect of the 'Cat 63 areas' identified on the Appellant's plans;

(c) The Appellant sought to retain the status of the whole of the Abercrombie Site and Wanneroo Site as licensed premises, and so received what it had sought in relation to its application for the [new] Abercrombie Licence and its application to amend the 2009 Wanneroo Licence.

17 At the hearing of the appeal, the appellant contended that, in relation to the application to amend the 2009 Wanneroo licence, the respondent's delegate erred in applying the construction for which the respondent contends in pars (a) and (b) of the notice of contention. It also relies on that ground to challenge the validity of the grant of the new Abercrombie licence and on the further ground that the respondent's delegate acted beyond power in granting a licence over an area that exceeded the area for which the licence was sought in the appellant's application.

18 Before going to the details of the relevant facts, it is necessary to describe the legislative framework.

19 A number of defined terms frequently appear in relevant provisions of the Act. The definitions are contained in s 3(1). 'Emission' is defined to mean, among other things, a discharge of waste. 'Waste' is defined to include matter whether liquid, solid, gaseous or radioactive and whether useful or useless, which is discharged into the environment.

20 'Premises' is defined to mean residential, industrial or other premises of any kind whatsoever and includes land, water and equipment. As the definition is circular, it must be an inclusive definition which brings in the natural and ordinary meaning of the word. Equipment is very widely defined. As already noted, 'prescribed premises' means premises prescribed for the purposes of pt V of the Act.

21 'Licence' is defined to mean a licence granted and in force under pt V div 3 of the Act.

22 Section 3(2aa) relevantly provides:

A reference in this Act to the discharge, emission or transmission of anything ... -

(b) in relation to discharge, emission or transmission from premises, includes a reference to discharge, emission or transmission onto or into land, water, the atmosphere or living things on, in, under, above or part of the premises.

23 'Pollution' is defined to mean direct or indirect alteration of the environment to its detriment or degradation; to the detriment of an environmental value; or of a prescribed kind, that involves an emission (s 3A(1)).

24 Part V of the Act is headed 'Environmental regulation'. Division 1 of pt V covers pollution and environmental harm offences, most of which (s 49, s 50, s 50A and s 50B) are directed at 'a person'.

25 Section 49 of the Act makes it an offence for a person to, among other things, cause pollution or allow pollution to be caused (s 49(3)) or to emit an unreasonable emission from any premises or cause an unreasonable emission to be emitted from any premises (s 49(5)). Section 50 of the Act creates offences associated with the discharge of waste in circumstances in which it is likely to cause pollution. Section 50A and s 50B make it an offence for a person to cause, or allow to be caused, serious environmental harm and material environmental harm respectively.

26 However, under s 51 (also in div 1) an occupier of any premises commits an offence if he or she does not comply with any prescribed standard for an emission and take all reasonable and practicable measures to prevent or minimise emissions.

27 Division 3 of pt V of the Act, covering s 52 to s 64, is also directed at the occupier of premises. Section 52 relevantly provides:

The occupier of any premises who carries out any work on or in relation to the premises which causes the premises to become, or to become capable of being, prescribed premises commits an offence unless he does so in accordance with a works approval.

28 By s 53, the occupier of any prescribed premises who makes any specified type of change which may lead to a discharge of waste or emission of noise, odour or electromagnetic radiation commits an offence unless he makes the relevant change 'in accordance with ... a licence' or a works approval (s 53(1)(f), s 53(2)(c)).

29 Section 54 provides for applications for works approvals and s 55 makes it an offence to contravene any condition to which the works approval is subject.

30 Section 56 and s 57 are directly relevant. Section 56 relevantly provides:

(1) Subject to this Act, the occupier of any prescribed premises who -

(a) causes or increases, or permits to be caused or increased, an emission; or

(b) alters or permits to be altered the nature of the waste, noise, odour or electromagnetic radiation emitted,

from the prescribed premises commits an offence unless he is the holder of a licence issued in respect of the prescribed premises and so causes, increases, permits or alters in accordance with any conditions to which that licence is subject.

(a) made in the form and in the manner approved by the CEO;

(b) ...

(c) supported by such plans, specifications and other documents and information, including a summary thereof, as the CEO requires.

(2) On receiving an application made under subsection (1), the CEO shall -

(a) ...

(b) if that application complies with that subsection ... advise the applicant that that application has been received and seek comments thereon from -

(i) any public authority or person which or who in the opinion of the CEO has a direct interest in the subject matter of that application; and

(ii) ...

(2a) As well as seeking comments under subsection (2)(b) the CEO is to advertise the application in the prescribed manner, inviting any person who wishes to comment on it to do so within such period as is specified in the advertisement.

(3) The CEO shall, after having taken into account any comments received from any public authority or person from which or whom comments were sought under subsection (2)(b) or (2a) and subject to section 60 -

(a) in the case of an application for a licence made under subsection (1) relating to a matter in respect of which a works approval has not been granted and subject to subsection (4) -

(i) grant a licence subject to such of the conditions referred to in section 62 as the CEO specifies in the licence; or

(ii) refuse to grant the licence.

32 Section 57 is the only licensing provision in the Act. It does not in terms identify what can be the subject matter of a licence.

33 A holder of a licence who contravenes a condition to which it is subject commits an offence (s 58(1)).

34 The respondent is given very wide power in s 59 to amend a licence, including on his own initiative. Section 59 relevantly provides:

(c) redescribing the boundaries or area of the premises to which the ... licence applies;

(2) A ... licence may be amended on application by the holder of the ... licence or on the initiative of the CEO.

35 Paragraph (c) is not limited to errors arising from a mistake or misdescription (s 59(1)(e)).

36 The procedures for amending a licence are contained in s 59B. Before amending a licence, the CEO must give a written notice to the licence holder (s 59B(2)) stating, among other things, details of the proposed action and inviting representations to show why the action should not be taken (s 59B(3)). The CEO is required to consider any representation properly made (s 59B(6)).

37 The holder of a licence who is aggrieved by an amendment under s 59(1) may appeal under s 102 of the Act. There is no appeal from the grant of a licence.

38 A licence can be revoked if the holder of the licence applies to surrender it (s 59A(2)(e)).

39 The effect of a licence under s 57 is not confined to pt V div 3 offences. It extends to pt V div 1 offences. Section 74A(b)(iv) provides that it is a defence to proceedings under pt V for causing pollution, in respect of an emission, or for causing serious environmental harm or material environmental harm, if the person charged with that offence proves that the pollution, emission or environmental harm occurred 'in accordance with ... a licence'.

40 Moreover, the powers of an inspector, authorised person or the CEO under s 73(1), s 73(4) and s 73A of the Act are limited where, among other things, waste is discharged from any premises 'in accordance with a ... licence'.

41 The 2005 Abercrombie licence was, in form, a single licence. After identifying the appellant as the 'Licensee and Occupier of Premises', the 2005 Abercrombie licence relevantly provided:

NAME AND LOCTION OF PREMISES

Abercrombie Road Resource Recovery Centre

Lot 115 on Plan 48295 and Lot 2 on Plan 29392, Abercrombie Road

Postans, WA 6167

PRESCRIBED PREMISES CATEGORY

Schedule 1 of the Environmental Protection Regulations 1987

Subject to the conditions of licence set out in attached 6 pages.

42 Condition 2, under the heading 'ACCEPTANCE OF WASTE AS LANDFILL' provided:

The Licensee shall accept and bury only the following types of waste at the premises:

(i) Clean fill;

(ii) Inert waste Type 1; and

(iii) Special waste Type 1.

43 Thus condition 2 limited the category 63 types of waste to a subset of the types listed in the Definitions. The licence also included a condition directed at the category 67A activity. Further, the licensee was obliged to obtain and have analysed representative groundwater samples from identified monitoring bore sites (MB1, MB2 and MB3).

44 Attachment 1 to the 2005 Abercrombie licence showed Lot 115 and Lot 2, being 'the premises' identified on page 1 of the licence. However, there is no express reference in the body of the licence to attachment 1. There is also an attachment 2 to which no express reference is made in the body of the licence. Attachment 2 identifies the location of the monitoring bore sites and contains other information, including the maximum depth of excavation above ground water levels.

45 The 2009 Wanneroo licence is in relevantly the same format. Attachment 1 to that licence (to which no reference is made in the body of the licence) identifies the boundary of the premises to which it applies and the location of monitoring bore sites.

46 The appellant's application to amend the 2005 Abercrombie licence relevantly stated:

Location of Premises for Category 63 activities

Part of Lot 115 on Plan 48295 and part of Lot 2 on Plan 29392 Abercrombie Road only will be used for Category 63 activities.

Please substitute the attached diagram as the new Attachment 1 to the licence which delineates this area.

47 The diagram shows Lot 115 and Lot 2 with part thereof identified by shading and survey coordinates representing the reduced area for the appellant's category 63 activities. The application for the new licence for the Abercrombie Site incorporated this amendment.

48 The appellant's application to amend the licence for the Wanneroo Site was in the same format. It sought to substitute an attached diagram in place of attachment 1 of the existing licence. The new diagram delineated, by shading and survey coordinates, the reduced area which the appellant sought for its category 63 activities.

49 In the same application, the appellant sought and in due course received approval to change from category 62 (solid waste depot) to category 61A (solid waste facility).

50 Notwithstanding the ambiguity in the form of the appellant's applications relating to the category 63 activities, it was known to the Department of Environment and Conservation (the Department) that the appellant wanted to reduce the area on which category 63 activities were permitted from the whole of the premises the subject of each existing licence to the smaller area identified in its applications, whilst the other approved categories would continue to apply over the whole of the premises the subject of the licence [68].

51 Mr Vasel was the manager of the Works Approvals and Emissions Licensing Section within the Department and the respondent's delegate who made the decisions under review.

52 Mr Vasel refused to contract the area for category 63 activities because, among other reasons, the category 63 area delineated in the diagrams submitted by the appellant did not describe the whole of the area used by the appellant on each of the Abercrombie Site and the Wanneroo Site for its category 63 activities. Mr Vasel said in an affidavit:

Quite apart from information available which indicated that the Applicant was in fact disposing of waste other than clean fill outside of its Category 63 areas in its so called 'civil works sites', the Cat 63 diagrams did not include other parts of the premises used for the initial acceptance of inert waste for burial (eg, the entrance to the premises where the vehicles transporting the waste to premises reported in and where loads were sometimes inspected); other parts of the premises used to transport the waste within the premises ... ; other parts of the premises used to store the waste after its acceptance and prior to its burial, or other parts of the premises used to store the equipment used to carry out the filling/burial of the waste [76].

53 The evidence was that at the time of the applications the appellant was already doing what it proposed in its applications (ts 70). An issue before the primary judge was the proper construction of category 63 prescribed premises under the Regulations and the Definitions. The trial judge accepted Mr Vasel's evidence on the subject:

Mr Vasel concluded that the applicant used parts of the Abercrombie and Wanneroo centres outside the category 63 areas for its category 63 activities. He also concluded that the applicant conducted the various activities undertaken at each centre as a single, integrated operation. Those were conclusions that he reached about matters of fact. They were conclusions that were not disputed by the applicant and the evidence on which Mr Vasel relied to reach those conclusions was not contested [127].

54 The respondent contended below and in the appeal that, on a proper construction of the Act, only one licence could be granted under the Act in respect of a 'single premises'. The primary judge rejected this all or nothing construction of the Act [94], [95]. He concluded that by the time Mr Vasel made the decisions under review it was apparent that the appellant intended to, in effect, carve out a separate licence for the category 63 area while retaining a licence over the whole of each of the Abercrombie Site and Wanneroo Site for the other prescribed activities [101]. The primary judge held that there is no substantive difference between issuing separate licences for each of the prescribed premises where there are multiple prescribed premises within a site or issuing one licence that separately identifies and licenses each of the prescribed premises [95].

55 The primary judge concluded that the respondent had the power under s 57 and s 59 of the Act to determine, and did in fact determine, the 'prescribed premises' in respect of the Abercrombie Site and the Wanneroo Site. He identified the issue for determination as follows:

Accordingly, I consider that the question of whether the respondent could, as a matter of form, grant or amend the Abercrombie and Wanneroo licences to create, in effect, a separate licence for the category 63 areas was not the real issue to be decided by Mr Vasel on the applicant's applications. Rather, the issue he was required to determine was whether the category 63 areas delineated by the applicant constituted prescribed premises within the meaning of sch 1 to the Regulations. The issue was the same for the applications to renew the Abercrombie licence under s 57 of the Act and to amend the Wanneroo licence under s 59. Section 59(1)(c) refers to amending the boundaries or area of premises to which the licence applies; that is, amending the licence to reflect the boundaries or area that comprises the prescribed premises the subject of the licence [96].

56 The primary judge said that determining what constitutes prescribed premises for the purposes of s 57 and s 59 of the Act was not merely an administrative matter but was the foundation for the regulatory regime created by div 3, concluding that the power conferred on the respondent by s 57 is to license prescribed premises [98].

57 Neither party to the appeal supported the primary judge's conclusion that the power conferred by s 57 and s 59 is to grant or amend a licence reflecting the boundaries of the prescribed premises. That is, they did not support the primary judge's conclusion that the respondent would exceed the power conferred by s 57 if he purported to grant a licence over an area that extended beyond what were, in fact, prescribed premises [100].

58 The primary judge rejected the appellant's contention that the power conferred on the respondent by s 57(3) and s 59 of the Act was expressly limited to either granting or refusing an application for a licence or an amendment to a licence. More specifically, the appellant contended that the respondent did not have the power to, in effect, vary an application and grant or amend the licence in accordance with the variation. On the application to amend the 2009 Wanneroo licence, the trial judge said:

In my view, it cannot be said that the respondent exceeded his powers in determining the application to amend the Wanneroo licence on any interpretation of the power conferred by s 59 of the Act. I do not see how it can be said that the respondent exceeded the power conferred by that section in deciding to accept some amendments proposed by the applicant and to otherwise leave the licence unaltered by refusing to grant the amendment sought to redescribe the boundaries or area of the prescribed premises [113].

59 The appellant conceded at the hearing of the appeal, correctly in my view, that the respondent had the power to refuse an application to amend a licence to reduce the area the subject of the licence. However, it pressed its claim that the respondent did not have the power to grant a licence over an area larger than that the subject of the application.

60 The primary judge held that the respondent had the power to grant the new Abercrombie licence for an area that covered the entire Site for each nominated prescribed premises category, including category 63 [117]. He did so for the following reasons:

(a) an applicant for a licence is not required by the Act or Regulations to define or describe the area occupied by the prescribed premises;

(b) the effect of s 57 (in particular ss 57(2), (2a) and (3)) is to suggest that it is for the respondent to determine what constitutes the prescribed premises as part of his or her inquiry into and deliberations about whether a licence should be granted and if so on what conditions;

(c) what constitutes the prescribed premises is a matter of fact and can involve the application of complex concepts and judgments; thus the subject matter of a licence issued under s 57 indicates that it was intended that the respondent would have the power to determine what constituted the prescribed premises when deciding an application for a licence, including the conditions to be incorporated;

(d) that view was confirmed by s 59(1)(c) which indicated that the boundaries or area of prescribed premises is a matter that may be ultimately determined by the respondent;

(e) draconian commercial consequences could flow from a refusal of a licence, suggesting that the respondent was intended to have flexibility to define the boundaries or area of the prescribed premises to be licensed [115].

61 The first issue for determination is whether the primary judge erred in confining the licensing (and amendment) power to premises that are in fact prescribed premises.

62 The appellant and the respondent agree that the power to grant a licence is in respect of premises, which includes, but is not limited to, prescribed premises. It is unnecessary for present purposes to determine whether s 57 applies if the premises have no connection with prescribed premises. That issue arises, tangentially, in the context of the respondent's contentions. I will deal with it in that context.

63 Section 57 of the Act does not expressly identify the subject matter of a licence. It does not refer to, or use the term, 'premises' or the narrower term 'prescribed premises'. Having regard to the definitions in the Act and Regulations, 'prescribed premises' mean premises on or at which any prescribed activity (ie one coming within the description and production/design capacity in sch 1 of the Regulations) is conducted.

64 However, it is clear from the provisions in pt V of the Act as a whole (in particular, s 55(1), s 55(2), s 56(1), s 58(2), s 58(3), s 59(1)(c), s 59A(2)(b), s 61, s 62A(1) and s 68A) that a licence may only be granted by the respondent under s 57 in respect of 'premises'.

65 In my view, the respondent has the power under s 57 to license an area that is wider than, but connected with and which includes, actual and proposed prescribed premises for the following reasons.

66 First, a licence is protective. It can prevent an offence arising under s 53 and s 56 of the Act. It also provides a defence under s 74A(b)(iv) to an offence by a person under pt V div 1 of the Act. The licence can protect the occupier, and a person acting on behalf of the occupier, of prescribed premises.

67 Secondly, the permission supplied by the grant of a licence applies prospectively to the future use of premises. So, for example, under the 2005 Abercrombie licence and 2009 Wanneroo licence the appellant was given permission to engage in the nominated categories of prescribed activity on any part of the relevant Sites. That is clearly within power. When an application relates to a green fields site, there will be no (existing) prescribed premises.

68 Thirdly, the broader term 'premises' rather than 'prescribed premises' is also consistent with the section's protective purpose in situations such as the present when an existing licence in respect of prescribed premises is to be amended or replaced. What constitutes prescribed premises is a matter of mixed fact and law that, as the primary judge observed, can involve the application of complex concepts and judgments. To err in that assessment would render the occupier of prescribed premises guilty of an offence. To license premises, not just prescribed premises, provides an intended margin of safety.

69 Finally, a licence issued 'in respect of' prescribed premises for the purpose of s 56(1) does not reflect an intention that the licensing power in s 57 be confined to the boundaries of the premises that correspond with the location of the activities which, if done, would make it prescribed premises. It is sufficient if the prescribed premises fall within the premises the subject of the licence.

70 However, the identification of the category 63 'prescribed premises' was, on the facts of this case, a relevant factor in the exercise of the power under s 57 and s 59 of the Act. There would be sound policy and practical reasons not to license an area of land that was in fact a subset of prescribed premises (or if such a finding of fact was reasonably open).

71 In summary, the primary judge erred in holding that the power in s 57 is confined to licensing the area of the premises on which prescribed activities are to be conducted. As a result, he also erred in holding that the respondent was obliged to determine the prescribed premises under s 57. However, in this case the areal extent of the prescribed premises for the appellant's category 63 activities was a relevant factor in determining whether to grant a licence, and if so on what terms and conditions. In the circumstances, the primary judge's error had no direct impact on his assessment of the validity of the administrative decisions under review.

72 The respondent's submissions relating to contentions (a) and (b) are to the following effect. First, the definition of prescribed premises in the Regulations cannot dictate the meaning of the term prescribed premises in the Act. That is, prescribed premises in the Act does not mean premises on which prescribed activities are conducted.

73 Second, the object of s 57 is not to authorise activities that may cause emissions or alterations the subject of pars (a) or (b) in s 56(1); the object of s 57 is to license premises. The activities on the premises which make it prescribed premises for the purposes of s 56 are properly the subject of conditions of a licence under s 57.

74 Third, there is no necessary connection between emissions or alterations the subject of pars (a) or (b) of s 56(1) and the activity that causes premises to be prescribed premises.

75 As a consequence of the above, if an occupier carries out another category of activity that is not expressly or impliedly prohibited in the conditions attached to a licence, there will be no offence. By way of example, the respondent submitted that if the appellant had established a livestock yard (another category of prescribed activity) on the Abercrombie Site, the appellant would not contravene s 56 of the Act because that activity was not expressly or impliedly prohibited in the conditions of the licence (ts 63).

76 Fourth, the identification of the relevant premises is not, or not entirely, a matter for an applicant for a licence. The respondent must consider whether the subject of the licence is in fact 'a single (or separate) premises'. A licence under s 57 must be in respect of such 'a single premises'. The respondent relies on the fact that the Act requires the identification of premises from which emissions may be discharged, even in the absence of a licence or a licence application, as in s 65, s 73 and s 79.

77 Fifth, it was (at least) open to conclude that the category 63 areas the subject of the appellant's applications were not single premises but were part of larger premises identified by 'some physical or functional unity or integrity to the land or operations on the land or equipment' that enabled it to be described as something which is premises for the purposes of s 57 (ts 68).

78 Sixth, the only 'premises' in this case were the whole of the Abercrombie Site and the whole of the Wanneroo Site. As s 57 licenses premises not activities on premises and only the whole of 'a single premises', there can only be one licence for multiple categories of prescribed activity on or at a single premises.

79 The primary judge was correct to reject the respondent's contentions (a) and (b). The definition of prescribed premises in the Regulations to mean, in effect, premises on which any prescribed category of activity is conducted, is consistent with the text and purpose of pt V div 3 as a whole and applies where that defined term is used in the Act.

80 The purpose of div 3 of pt V is to regulate activities on premises that carry a high risk of pollution or environmental harm of the type regulated in div 1 of pt V. The 'activities' on premises are the primary focus of the div 3 offence provisions. Compare that with div 1 offences in which the primary focus is on the consequences of activities or other conduct. It is an offence to emit, or cause to emit, an unreasonable emission from any premises and to cause, or allow to be caused, pollution, serious environmental harm and material environmental harm.

81 The language of the exclusion in s 56(1) (unless the occupier is 'the holder of a licence issued in respect of the prescribed premises and [acts] in accordance with any conditions to which that licence is subject') does not mandate a conclusion that a licence is in respect of premises with the prescribed activities being a matter for the conditions. The effect of that language in s 56(1) is equivalent to the effect of the expression 'in accordance with a licence' in s 53, s 73(1), s 73(4), s 73A and s 74A(b)(iv).

82 Moreover, there must be a connection between the emissions or alterations in pars (a) or (b) of s 56(1) and the subject matter and conditions of the licence. That is, what is permitted by a licence is the relevant prescribed activity on the nominated premises in accordance with any conditions to which the licence is subject. That is consistent with the text of s 56(1) and the purpose of pt V div 3. The application of the construction for which the respondent contends, exemplified by the livestock yard example, produces outcomes that are positively inconsistent with the purpose of s 56. Moreover, the respondent's construction of s 56(1) would capture emissions that fell short of giving rise to a div 1 offence from activities that are not prescribed. That cannot have been the legislative intention.

83 The starting point for a consideration of an application for a licence of premises under s 57 must be (inter alia) the premises identified by the applicant. It is the making of an application that enlivens the licensing power. Whilst it is correct that elsewhere in the Act the term 'premises' has a wholly objective meaning (ie one independent of any area nominated by an applicant) that is where it is necessary to determine the source of pollution or other environmental harm, not the extent of the premises.

84 Finally, there is no justification in the text or purpose of the Act to require, as a matter of statutory construction, that there be only one licence for multiple prescribed activities where there is 'a single premises'. That construction is linked with the respondent's claim that s 57 licenses premises not activities.

85 Latent in the respondent's submissions is a suggestion that s 57 empowers the grant of a licence over premises that have no connection with prescribed premises. It is unnecessary to determine that issue in this appeal. It is sufficient for present purposes to note that such a construction is not mandated by the defence in s 74A(b)(iv) which is arguably limited to emissions (etc) from prescribed activities on premises the subject of a licence.

86 The respondent's final contention is that the decisions under review delivered to the appellant what it had asked for in its relevant applications. This contention depends upon taking a literal approach to the construction of the appellant's requests in relation to the area of the category 63 activities. A literal interpretation of the applications was properly rejected by the primary judge.

87 For these reasons, I would dismiss the respondent's contentions.

The respondent's delegate - all or nothing approach?

88 This ground relates to both the Abercrombie and Wanneroo applications. The appellant claims that Mr Vasel concluded that there could, as a matter of law, be only one licence for a single premises. It relies on the statements in his reasons that the purpose of attachment 1 (of the existing licences) is to depict the boundary of the licensed premises and that the relevant diagram submitted by the appellant did not describe the boundaries or area of the licensed premises (G2/342 and 354). The appellant also relies on par 71 of Mr Vasel's affidavit which states:

Even if other amendments were made to the Abercrombie Licence and Wanneroo Licence so that the licensed premises were described on page 1 of each licence by reference to the Abercrombie Cat 63 diagram and the Wanneroo Cat 63 diagram, I considered that this would not only reduce the area covered by the Applicant's 'category 63 licence' for each premises. The Abercrombie Licence and Wanneroo Licence were not simply 'category 63 licences'. Each licence also covered the Applicant's category 62 and 67A activities. It appeared to me that amending the Abercrombie Licence and Wanneroo Licence to describe the premises covered by the licence by reference to the Abercrombie Cat 63 diagram and the Wanneroo Cat 63 diagram would confine the area in which the Applicant could carry out its category 62 or 61A activities and its category 67A activities to the area delineated in the Abercrombie Cat 63 diagram and the Wanneroo Cat 63 diagram.

89 The respondent contends that on both occasions Mr Vasel was addressing the factual effect of the form of the amendments, not any limitation on the power to, in effect, carve out a separate licence for the category 63 activities. The respondent relies on Mr Vasel's affidavit as a whole, in particular [17], [26], [69], [71], [75] - [77], [90], [92]. The respondent also claims that this issue was not advanced below. That appears to be so.

90 In any event, on my reading of the material as a whole, I am satisfied that Mr Vasel was addressing the factual effect of the form of the amendments, not any limitation on the respondent's power to carve out a separate licence for the category 63 activity.

91 However, Mr Vasel did not confine his consideration to matters of form. He also considered the substance of the applications as is evidenced by the primary reason for his decisions, being his assessment of the scope of the proposed category 63 activities. I would dismiss ground of appeal 3.

92 The central issue in this appeal is whether the respondent had the power to grant a licence over a bigger area than that the subject of the appellant's application for a new licence in relation to the category 63 activities on the Abercrombie Site.

93 The indications in the text and context of s 57 are that the respondent's power is not confined to granting a licence on the terms on which it is sought in the application. First, the power in s 57(3) is to grant or refuse a licence, not an application for a licence.

94 Secondly, the power in s 57(3)(a)(i) is to grant 'a' licence whereas the power in s 57(3)(a)(ii) is to refuse to grant 'the' licence. The word 'the' in subpar (ii) connotes the licence the subject of the application. The term 'a licence' in par (i) does not have that connotation.

95 Thirdly, the obligation to advertise an application for a licence does not require details of where on the premises the prescribed activities are to take place. Indeed, in the 2005 Abercrombie licence and the 2009 Wanneroo licence, the permission extended to any part of the whole of the premises. Regulation 5J(2)(b)(iii) only requires particulars of the locality of the premises to which the application relates.

96 Fourthly, and most significantly, is the respondent's power in s 59 of the Act, on his initiative, to redescribe the boundaries or area of the premises to which the licence applies. That permits a substantive variation to the area of the licensed premises. It is inconceivable that the respondent would be given the power to vary the boundaries or area of licensed premises but not have any flexibility in the identification of the boundaries or area of the premises at the time of the grant of the licence. As the appellant acknowledged, if the respondent does not have the power to grant a new licence over a bigger area than that applied for, s 59(1)(c) would have to be read down to correspondingly confine the power to amend. The availability of a right of appeal from an amendment to, but not the grant of, a licence does not alter that assessment. There would need to be a compelling justification to deprive the respondent of the flexibility associated with the natural and ordinary meaning of the amendment power.

97 The appellant contends that a power to increase the area of the licence would enlarge the power to impose conditions on the use of the greater area. There are a number of points to be made on that subject. First, any condition must satisfy the statutory purpose in s 62(1) which focuses on the prevention, control, abatement or mitigation of pollution or environmental harm. Second, the power to license a bigger area is not at large but must be connected with the application and its purpose of obtaining a licence for prescribed premises. Third, conditions may be within power even if they require the licence holder to take steps outside the licensed area such as, for example, monitoring water quality on adjacent premises occupied by the licence holder. Finally, the applicant has the option of surrendering the licence.

98 The appellant also contends there would be no practical disadvantage if the power to grant a licence was confined to the area the subject of the application. It says the respondent could refuse to grant the licence or alternatively, grant the licence over the area sought and prosecute the applicant if he was of the reasonable opinion that the prescribed premises would exceed the area of the licence. However, the refusal of a licence for existing prescribed premises has the potential to cause significant financial detriment to an applicant. Moreover, the grant of a licence over what the respondent reasonably regards as a subset of the prescribed premises has nothing to commend it. The alternatives produce outcomes that are highly unlikely to reflect the legislative intent.

99 For these reasons, the power in s 57 is not limited to granting a licence over the premises nominated by the applicant in its application for a licence. It was open to the respondent to grant a licence over the whole Abercrombie Site in relation to the category 63 activities.

100 The appellant has failed to establish that the respondent's delegate made any reviewable error in granting the new Abercrombie licence and refusing to amend the 2009 Wanneroo licence to reduce the category 63 prescribed premises. The primary judge was correct to discharge the

order nisi and dismiss the application for prerogative relief. Accordingly, the appeal must also be dismissed.

101 NEWNES JA: I have reached a different view to McLure P on one issue in the appeal, namely whether the respondent had the power to grant a licence over a larger area than that sought in the appellant's application for a new licence in relation to the category 63 activities on the Abercrombie site. In my opinion, the respondent did not. My reasons for coming to that view are as follows.

102 Shortly put, the appellant operates resource recovery centres at sites in Abercrombie Road, Postans (the Abercrombie site) and Wanneroo Road, Neerabup (the Wanneroo site). At each site, the appellant carries on various activities, including receiving materials for landfill for the purpose of creating land for future use for subdivision or national park. By reason of the activities carried out on them, the sites, or parts of them, fall within the definition of 'prescribed premises' for the purposes of pt V of the Environmental Protection Act 1986 (WA) (the Act).

103 It is necessary to digress briefly to describe how that comes about.

104 In s 3(1) of the Act, 'prescribed premises' mean premises prescribed for the purposes of pt V of the Act. Under the Environmental Protection Regulations 1987 (WA) (the Regulations), 'prescribed premises' for the purposes of pt V of the Act are the premises specified in sch 1 of the Regulations. Schedule 1 contains 89 different categories of premises. Only three categories are relevant. They are:

Solid waste depot: premises on which waste is stored, or sorted, pending final disposal or re-use.

105 The word 'premises' is defined in s 3(1) of the Act to mean 'residential, industrial or other premises of any kind whatsoever and includes land, water and equipment'. It is evident that when used within the definition of 'premises', the word 'premises' bears its ordinary meaning, that is, it includes 'a tract of land; a house or building within the grounds, etc., belonging to it': Macquarie Dictionary (5th ed, 2009). The definition of premises in s 3(1) is plainly very broad indeed.

106 For reasons I will come to, in order for a person to carry out any of the activities referred to they must have a licence in respect of the premises on which they carry them out.

107 The appellant was at each site accepting waste (classified as 'inert landfill') for burial as landfill, within category 63, and carrying on other activities which fell within categories 62 and 67A.

108 On 31 March 2005, the appellant was issued with a licence in respect of the whole of the Abercrombie site for categories 62, 63 and 67A.

109 A similar licence was issued to the appellant on 19 February 2009 in respect of the whole of the Wanneroo site.

110 By a letter dated 17 April 2009, the appellant applied to the respondent to amend the 2005 Abercrombie licence, among other things, by reducing the area to which the category 63 licence related. The reduced area constituted part only of the Abercrombie site. It was identified by a survey plan on which the area was shaded and for which survey co-ordinates were given. The appellant did not seek to reduce the area to which the category 62 and 67A licences applied.

111 On 30 June 2009, the appellant wrote to the respondent requesting that similar amendments be made to the Wanneroo licence; that is, the appellant sought to reduce the area to which the category 63 licence applied to a smaller area within the Wanneroo site.

112 In each case, the appellant sought to reduce the areas covered by the category 63 licences because it believed that by doing so it would reduce both the survey costs it would otherwise incur and the amount of the levy it would be liable to pay under the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA).

113 On 10 January 2010, before the applications for amendment had been determined by the respondent, the appellant applied for a new licence for the Abercrombie site, the 2005 licence by then approaching its expiration date. The application for the new licence was in accordance with the 2005 Abercrombie licence except that it was for the reduced category 63 licence area sought in the earlier amendment application.

114 A new licence in respect of the Abercrombie site was subsequently granted but the respondent issued the licence for the category 63 activities (as for the category 62 and 67A activities) in respect of the whole site, as in the 2005 licence. The respondent refused to issue the category 63 licence for the reduced area designated by the appellant.

115 On 6 April 2010, the respondent informed the appellant that it would amend the Wanneroo licence but the amendments would not include any reduction in the area to which the category 63 licence related. An amended licence was issued on 13 May 2010. It was in respect of the whole Wanneroo site, as in the unamended licence.

116 The delegate of the respondent who made the decision in each case, Mr Vasel, refused to confine the category 63 licence area to the smaller area delineated in the plans submitted by the appellant because, among other things, he considered it did not cover the whole of the area used by the applicant at each site for its category 63 activities. In an affidavit in the proceedings below, Mr Vasel said:

Quite apart from the information available which indicated that the applicant was in fact disposing of waste other than clean fill outside of its Category 63 areas in its so called 'civil works sites', the Cat 63 diagrams did not include other parts of the premises used for the initial acceptance of inert waste for burial (eg, the entrance to the premises where the vehicles transporting the waste to the premises reported in and where loads were sometimes inspected); other parts of the premises used to transport the waste within the premises ...; other parts of the premises used to store the waste after its acceptance and prior to its burial, or other parts of the premises used to store the equipment used to carry out the filling/burial of the waste [75] - [76].

117 The appellant sought a writ of certiorari quashing both the grant of the 2010 Abercrombie licence and the decision to refuse the amendment to the Wanneroo licence to reduce the category 63 licence area. It also sought a writ of mandamus requiring the respondent to grant the Abercrombie licence in accordance with the appellant's 2010 licence application and to amend the Wanneroo licence to reduce the category 63 licence area in accordance with the appellant's amendment application.

118 The primary judge dismissed the applications: Eclipse Resources Pty Ltd v Kieran McNamara, Chief Executive Officer, Department of Environment and Conservation [No 2] [2012] WASC 264. The appellant has appealed against that decision. The reasons of the primary judge and the grounds of appeal are referred to in the reasons for decision of McLure P. Her Honour has also set out the notice of contention upon which the respondent relies. It is unnecessary to repeat them.

119 The relevant provisions of the Act are contained in pt V. So far as relevant, the scheme of pt V, broadly stated, is that it is an offence for a person to cause or allow pollution to occur but it is a defence to proceedings for such an offence, among other things, if the person proves that it occurred in accordance with a licence issued under the Act. That scheme is implemented, in substance, as follows.

120 Division 1 of pt V (s 49 - s 51) creates 'pollution and environmental harm offences'. Under div 1, it is an offence for a person, among other things, to cause pollution or allow pollution to be caused: s 49(3); or to emit or cause an unreasonable emission to be emitted from any premises: s 49(5). It is also an offence to cause or allow waste to be placed in a position from which it could reasonably be expected to gain access to any portion of the environment and in so doing be likely to result in pollution: s 50(2).

121 Under s 50A, a person who causes environmental harm or allows it to be caused commits an offence: s 50A(2). A person who causes material environmental harm or allows it to be caused also commits an offence: s 50B(2). And the occupier of any premises who does not comply with any prescribed standard for an emission or take all reasonable and practicable measures to prevent or minimise emissions commits an offence: s 51.

122 Division 3 of pt V (s 52 - s 64) deals with 'prescribed premises, works approvals and licences'. Section 52 makes it an offence to cause any premises to become prescribed premises except in accordance with a works approval. Under s 53 an occupier of prescribed premises who, otherwise than in accordance with a works approval or licence, makes changes to the operations, equipment or materials on the premises which would cause, alter or increase emissions from the premises commits an offence. Under s 56, an occupier of any prescribed premises who causes or increases, or permits to be caused or increased, an emission, or alters or permits to be altered the nature of any emission, commits an offence unless it is done in accordance with a licence for the prescribed premises.

123 Applications for, and the grant of, licences under the Act are dealt with in s 57. It is appropriate to set out the relevant parts in full:

(a) made in the form and in the manner approved by the CEO; and

(b) ...

(c) supported by such plans, specifications and other documents and information, including a summary thereof, as the CEO requires.

(2) On receiving an application made under subsection (1), the CEO shall -

(a) ...

(b) if that application complies with that subsection ... advise the applicant that that application has been received and seek comments thereon from -

(i) any public authority or person which or who in the opinion of the CEO has a direct interest in the subject matter of that application; and

(ii) ...

(2a) As well as seeking comments under subsection (2)(b) the CEO is to advertise the application in the prescribed manner, inviting any person who wishes to comment on it to do so within such period as is specified in the advertisement.

(3) The CEO shall, after having taken into account any comments received from any public authority or person from which or whom comments were sought under subsection (2)(b) or (2a) and subject to section 60 -

(a) in the case of an application for a licence made under subsection (1) relating to a matter in respect of which a works approval has not been granted and subject to subsection (4) -

(i) grant a licence subject to such of the conditions referred to in section 62 as the CEO specifies in the licence; or

(ii) refuse to grant the licence;

(b) in the case of an application for a licence made under subsection (1) relating to a matter in respect of which a works approval has been granted -

(i) if, in the opinion of the CEO, the works concerned have been completed in accordance with the conditions to which the works approval is subject, grant the licence subject to such of the conditions referred to in section 62 as are not inconsistent with any conditions to which the works approval is for the time being subject and as are specified by the CEO in the licence; or

(ii) refuse to grant the licence.

124 A holder of a licence who contravenes a condition to which the licence is subject commits an offence: s 58.

125 The respondent has wide powers to amend a licence, either on the application of the licence-holder or on his own initiative: s 59. Those powers include the power to amend a licence by 'redescribing the boundaries or area of the premises to which ... the licence applies': s 59(1)(c).

126 The procedure for amending a licence is set out in s 59B. Relevantly, before the respondent amends a licence on his own initiative he must give the licence-holder written notice stating details of the proposed action and inviting the licence-holder to make representations in writing within a specified period as to why the action should not be taken: s 59B(2) - (4). The respondent must consider any representations properly made by the licence-holder: s 59B(6).

127 Certain rights of appeal are provided for in respect of decisions made by the respondent under the licensing provisions. A licence-holder who is aggrieved by the refusal of the respondent to grant a licence or by the specification of any condition in the licence under s 57(3), or who is aggrieved by the amendment of the licence under s 59(1), may appeal to the Minister under s 102.

128 Division 5 of pt V provides defences to a prosecution for an offence under pt V. Relevantly, under s 74A it is a defence to proceedings under pt V for causing pollution, in respect of an emission, or for causing serious environmental harm or material environmental harm, if the person charged with the offence proves that the pollution, emission, or environmental harm occurred in accordance with a licence: s 74A(b)(iv).

129 I respectfully agree with McLure P that the appeal in respect of the Wanneroo site (which turned on a different point) must fail, for the reasons her Honour gives. I would also dismiss the respondent's notice of contention for the reasons given by her Honour.

130 As mentioned above, I respectfully differ from McLure P, however, on whether the respondent had the power to grant a licence for the Abercrombie site in respect of an area larger than the area the appellant had specified in its application for the 2010 licence.

131 In my view, under the Act it is for the applicant to determine the activities it wishes to be permitted to carry on and the premises at which it wishes to be permitted to carry them on. The function of the respondent is to determine whether it is appropriate that the activities concerned should be permitted to be undertaken on the premises specified by the applicant. The respondent is required either to grant (whether or not subject to conditions) or refuse the licence for which the appellant has applied. The respondent is not entitled to make his own assessment that a greater area is required and then to issue a licence in respect of that area. That is the case whether or not the applicant has hitherto conducted the activity on the greater area or whether no such activities have previously been carried on.

132 In my opinion, it is likely that if the legislature had intended to confer on the respondent the power to grant a licence for a greater area than that sought by the applicant it would have used clear words to that effect. That is because such a power may have significant adverse consequences for an applicant. A licence may, and it might be expected often (if not generally) would, be granted subject to conditions relating to the management and use of the licensed premises. If a licence is issued in respect of a greater area than that sought, conditions on the licence intended to apply to the area where the prescribed activities are to be conducted would apply to areas where no such activities are intended to be conducted, potentially interfering with other uses to which those other areas could be put. I consider that is the case notwithstanding that the conditions which the respondent may impose on a licence are not at large but must satisfy the statutory purpose in s 62(1), which is concerned with the prevention, control, abatement or mitigation of pollution or environmental harm. Conditions of that nature which served no purpose in areas apart from the area where the prescribed activities were actually carried on would nevertheless apply to the whole of the area for which the licence was issued. In addition, any costs associated with the licence would apply to areas on which it was not intended to carry on the prescribed activities.

133 In that connection, as the primary judge noted at [51], in an affidavit filed in the proceedings the managing director of the appellant, Mr Sippe, said that the applicant would suffer 'considerable adverse impacts' if the whole of (relevantly) the Abercrombie site was the subject of a category 63 licence. Mr Sippe gave three reasons arising in the appellant's particular circumstances; first, that other activities the respondent wished to carry on at the site were precluded because the respondent refused to permit the depositing of certain types of soils within the area to which a category 63 licence applied, not just the area where the prescribed activities were actually carried on; secondly, the applicant would be required to incur the expense of a regular volumetric survey over the entire licensed area, not just the area where the prescribed activities were carried on; and, thirdly, the respondent contends that the applicant is obliged to pay a levy under the Waste Avoidance and Resource Recovery Levy Regulations on all material deposited across the entire area licensed for category 63 activities regardless of the nature or classification of the material. It seems that the last of those matters is in issue between the parties and is to be determined in other proceedings between them.

134 There are also several factors which in my opinion point against a conclusion that the respondent has such a power. As mentioned above, the Act provides an applicant with certain rights of appeal in the case of an adverse decision in respect of an application for a licence. Where an application for a licence is refused the applicant has a right of appeal to the Minister under s 102(1)(a) of the Act. Similarly, where a licence is granted subject to conditions which are unacceptable to the applicant, there is a right to appeal to the Minister under s 102(1)(c). But an applicant who is granted a licence in respect of an area it does not want included in the licence has no recourse, regardless of any adverse commercial or financial consequences that may result from the inclusion of that area. If the legislature had intended that a licence could be granted for a greater area than was sought it is unlikely it would have left an applicant who would thereby suffer adverse consequences without any avenue of recourse.

135 The process for the granting of a licence is also, in my opinion, contrary to the existence of such a power. Under s 57(2a), an application for a licence is required to be advertised by the respondent, inviting comments on it. The obvious intention is to enable persons who may be affected by the activities to comment on the application and, in particular, to make any objections to it. It cannot, in my view, have been intended that after that process has been completed the respondent should be at liberty to issue the licence for an area greater than that stated in the application on which comments were invited. Such a power would significantly diminish the object of inviting comment.

136 I would add that I do not consider that the manner of advertising currently prescribed under the Regulations, which specifies that the 'locality' of the proposed prescribed activities must be advertised, alters that. Whether or not that requirement means that the particular boundaries of the proposed premises must be advertised depends on the meaning of 'locality'. In that connection, I note that the ordinary meanings of 'locality' include 'a place, spot, or district ... the position of a thing, the place where it is': Macquarie Dictionary (5th ed, 2009). It is, however, unnecessary to determine that question, as even if 'locality' refers to something more general the Regulations do no more than specify the minimum requirements of the advertisement and do not preclude the actual boundaries being advertised. Moreover, if the specific boundaries were not advertised, persons who were concerned that they would be adversely affected by the proposed activities mentioned in an advertisement would no doubt seek further details of the application, including the specific area of the proposed premises, from the respondent for the purpose of commenting on the application.

137 It was submitted on behalf of the respondent that the wide powers the respondent has under s 59(1)(c) to alter, on his own initiative, the area of the premises to which the licence relates, supports the existence of the respondent's power to grant a licence for an area greater than that sought. It was argued that it would make little sense for the respondent to have the power to increase the area of the premises after - including immediately after - a licence was issued but not to have the power to grant the licence for the increased area in the first place. I do not accept that submission.

138 The Act expressly provides that where the respondent alters the area of the premises to which the licence relates under s 59(1)(c), he must first give written notice of that intention to the licence-holder and invite representations from the licence-holder as to why that action should not be taken; representations which he is expressly required to consider: s 59B(2) - (4). If the amendment is then made, the licence-holder has a right under s 102(2) to appeal to the Minister. None of those safeguards apply in a situation where the respondent has granted a licence in respect of an area greater than the applicant wanted.

139 Contrary to the respondent's submission, I do not read s 57(3)(a) as indicating an intention that a licence may be issued for a greater area. I accept that the words 'the licence' in s 57(3)(a)(ii) refer to the licence sought in the application. But, in my view, s 57(3)(a)(i) refers to 'a licence' (rather than 'the licence') simply because what is granted is not the licence in the terms sought by the applicant but a licence subject to conditions imposed by the respondent. In any event, even if I were wrong in that, the fact that the respondent may issue a licence otherwise than strictly in accordance with the application does not seem to me to lend any support to the proposition that he can issue a licence for an area beyond that sought by the applicant.

140 If the respondent considers that the area in respect of which a licence is sought is insufficient, it would clearly be open to him to invite the applicant to make an application in respect of a greater area. But ultimately the area in respect of which an applicant seeks a licence to carry on the prescribed activities is a matter for the applicant. It is the applicant who must make the commercial judgments involved in determining the area it requires. As the risk of being prosecuted by the respondent (s 114) is the consequence if the prescribed activities extend over a greater area than the licensed area, there was no reason for the

legislature to envisage that some supervisory role in determining the ambit of the area the applicant requires for the activities might need to be, or should be, exercised by the respondent, and, in my opinion, the Act does not contemplate such a role.

141 In my view, the primary judge erred in concluding that the respondent's delegate had not made a reviewable error in granting the category 63 Abercrombie licence in respect of an area greater than that sought by the appellant.

142 I would allow the appeal so far as it relates to the Abercrombie site and make the declaration sought by the appellant, limited to this issue.

ECLIPSE RESOURCES PTY LTD -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION [2013] WASCA 152 (24 June 2013)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (213 paragraphs)

ECLIPSE RESOURCES PTY LTD -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION [2013] WASCA 152 (24 June 2013)

Legislation Cited (3)