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[2012] WASC 264
General information, not legal advice.
Supreme Court of WA
2012-07-24
Corboy J
Original judgment source is linked above.
1 The applicant operates resource recovery centres at two locations Abercrombie Road, Postans (the Abercrombie centre) and Wanneroo Road, Neerabup (the Wanneroo centre). The centres were licensed as prescribed premises under the Environmental Protection Act 1986 (WA) (the Act).
2 Prescribed premises are premises that have been specified as such in sch 1 to the Environmental Protection Regulations 1987 (WA) (the Regulations) (see r 5). Part 1 of sch 1 identifies various categories of premises by reference to the purpose for which the premises are used (the prescribed purposes). It is an offence under the Act for the occupier of prescribed premises to, among other things, cause or permit to be caused an emission from the premises unless the occupier holds a licence issued under the Act and the emissions are caused or permitted in accordance with any conditions to which the licence is subject (s 56). The imposition of conditions in a licence issued under the Act is the primary means by which emissions from prescribed premises are regulated.
3 Various forms of waste material are received and processed by the applicant at the centres, including waste defined as 'class I (category 63) inert landfill' by the Landfill Waste Classification and Waste Definitions 1996 (the Definitions). The applicant's practice is to separately dispose of what it considers to be category 63 waste in designated voids created within the land occupied by each centre. Consequently, it is possible to identify an area within the centres that is intended to be used solely for the purpose of burying that form of waste as landfill (the category 63 areas).
4 The reference to category 63 in the Definitions was to category 63 of sch 1 to the Regulations. Category 63 was defined in sch 1 as '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'.
5 Accordingly, premises on which category 63 landfill is accepted for burial are prescribed premises. There was a difference between the applicant and the respondent over the range of activities encompassed by the expression 'accepted for burial' in the definition of category 63 prescribed premises in sch 1 to the Regulations. I will refer to the applicant's use of the Abercrombie and Wanneroo centres to accept category 63 landfill for burial as its 'category 63 activities'. That description is not intended to reflect any particular view about the meaning to be attributed to the expression 'accepted for burial' and in particular, the reference to 'category 63 activities' is not intended to imply that those activities only occurred in the category 63 areas designated by the applicant.
6 The applicant used the centres for other prescribed purposes. Consequently, the centres also constituted prescribed premises as they were used for those purposes; that is, they were prescribed premises according to other categories in sch 1 to the Regulations.
7 The applicant applied under s 59 of the Act to amend the licences for each centre. One proposed amendment concerned the applicant's category 63 activities. The applicant sought, in effect, to have the category 63 areas recognised as separate prescribed premises so that the licences would only apply to those areas to the extent that they regulated the category 63 activities. The licences would continue to apply to the entire area of each centre insofar as the centres were prescribed premises according to other sch 1 categories.
8 The licence that had been issued for the Abercrombie centre fell due for renewal prior to the respondent having decided whether he would grant the applicant's applications to amend its licences. The applicant applied for a new licence to be granted for the Abercrombie centre under s 57 of the Act. It was advised that the respondent would consider the amendments that had been sought when deciding whether to grant the new licence.
(a) He would grant the applicant a new licence for the Abercrombie centre (the Abercrombie licence). The licence that he issued included some of the amendments that the applicant had sought but it did not provide for the category 63 areas to be licensed as separate prescribed premises. Rather, the licence area comprised the entire area occupied by the centre for each prescribed premises category, including for the category 63 prescribed premises.
(b) He would amend the licence for the Wanneroo centre (the Wanneroo licence) in certain respects but he would not recognise the category 63 area defined by the applicant as separate prescribed premises. Accordingly, the licence area continued to be the entire centre for all categories of prescribed premises.
10 The applicant applied ex parte for orders that the respondent show cause why a writ of certiorari should not issue quashing the respondent's decisions and a writ of mandamus should not issue requiring the respondent to amend the licences according to the applicant's applications. The show cause order was granted: Eclipse Resources Pty Ltd v Department of Environment and Conservation [2010] WASC 360.
11 I have concluded that the order should not be made absolute having regard to the extent of the powers conferred on the respondent to grant or amend a licence for prescribed premises and the evidence received on the return of the show cause order about the reasons for the respondent's decisions.
12 It emerged on the return of the show cause order that the applicant's applications to amend the licences reflected a particular understanding of the statutory scheme for the licensing of prescribed premises that was significantly different to the respondent's view of the scheme (the respondent characterised the applicant's approach to the statutory scheme as proceeding on a 'fundamental misconception'). The applicant's understanding of the statutory scheme coloured the form in which it requested the amendments to be made, its interpretation of the reasons that had been given by the respondent for rejecting the applications and the grounds on which the show cause order was sought. Consequently, the grounds stated in the show cause order did not precisely capture the issues to be determined on the return of the order once the respondent's interpretation of the statutory scheme and his evidence regarding the applicant's activities at the centres were considered.
13 The licences held by the applicant expressly referred to prescribed premises category 63. They also referred to two other sch 1 categories: categories 62 and 67A (Abercrombie centre) and 61A and 67A (Wanneroo centre). Schedule 1 to the Regulations defines:
(a) category 61A as 'solid waste facility: premises (other than premises within category 67A) on which solid waste produced on other premises is stored, reprocessed, treated, or discharged onto land';
(b) category 62 as 'solid waste depot: premises on which waste is stored, or sorted, pending final disposal or re-use';
(c) category 67A as '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'.
14 Each licence attached a plan (the Abercrombie licence) or an aerial photograph (the Wanneroo licence). The plan and the aerial photograph depicted the boundaries of the centres. The applicant understood that the purpose of the plan and the photograph was to identify the licence area for each licence. There was a difference in the respondent's evidence on whether that was their purpose. However, I accept that at least one purpose of the plan and the aerial photograph was to identify the area over which each licence applied.
15 The applicant prepared a plan of each centre that separately identified the category 63 area as a shaded area within the boundaries of the centre. The dimensions of the areas were fixed by survey coordinates. The coordinates were stated on the plans.
16 The applicant applied to amend the licences by replacing the plan or aerial photograph that formed part of each licence with the plans that it had prepared. The intended effect of the amendments was to confine the licences for the disposal of waste as category 63 landfill to the category 63 areas. That reflected not just the applicant's view of the purpose of the plan and the aerial photograph attached to the licences but also its understanding of the relevant statutory scheme and the operation of the licences that the licences incorporated, among other things, a 'category 63 licence' which comprised a separate licence for the applicant's category 63 prescribed premises at each centre. The purpose of the amendments was, on the applicant's view of the statutory scheme, to confine the 'category 63 licence' for its category 63 prescribed premises (being that part of each centre that is used for the purpose of its 'category 63 activities') to the 'category 63 areas'.
17 The respondent refused to amend the licences by substituting the plans submitted by the applicant. He advised through his delegate that the plans for the licence areas did not 'describe the boundaries or area of the licensed premises' and they did not relate to any specific licence conditions.
18 It was apparent from the proposed grounds for the show cause order that the applicant understood that the reasons given by the respondent for refusing to amend the licences concerned the way in which the submitted plans defined and described the category 63 areas. That understanding reflected its view that the licences, in effect, incorporated a 'category 63 licence'. Accordingly, it interpreted the respondent's reasons as indicating that the proposed change to the area for the 'category 63 licence' had not been sufficiently identified in the plans that had been submitted. The applicant tendered evidence in support of its application for a show cause order that explained how the dimensions of the category 63 areas had been fixed by survey coordinates and the way in which the areas could be identified within each centre.
19 The grounds and reasons for the show cause order reflected the applicant's understanding of the respondent's advice about why the licences had not been amended to incorporate the plans that it had submitted with its applications. However, the respondent indicated on the return of the order that his refusal to amend the licences was not concerned with the method or precision by which the category 63 areas had been defined and described by the submitted plans. Rather, the advice that the applicant's plans did not describe the boundaries or area of the licensed premises was intended to convey a determination by the respondent's delegate, Mr Vasel, that the boundaries or area of the category 63 prescribed premises were, in fact, different to what had been depicted in submitted plans.
20 Mr Vasel was an officer of the Department of Environment and Conservation (the Department). He provided a detailed explanation of his decisions in an affidavit read at the hearing of the show cause order. He considered a number of matters in refusing to amend the licences. As has been indicated, those matters reflected, in part, a different interpretation of the relevant statutory scheme and, in part, his conclusions about how the applicant operated the centres and in particular, conducted the category 63 activities at the centres.
21 It is necessary to outline in further detail the statutory scheme and the activities undertaken by the applicant to fully explain the respondent's decisions and the issues to be determined on the show cause order.
22 Part V of the Act is entitled 'Environmental regulation'. It contains various provisions that create offences in relation to causing environmental harm and pollution. In particular:
(a) Section 49 provides that a person who emits or causes an 'unreasonable emission' from any premises commits an offence.
(b) Section 50 provides that a person commits an offence if s/he causes or allows waste to be placed in any position from which the waste could be expected to gain access to any portion of the environment and which would, in so gaining access, be likely to result in pollution.
(c) Section 50A and s 50B create offences for causing or allowing serious or material environmental harm.
(d) Section 50D provides that regulations may be made requiring a person who proposes to engage in conduct affecting the environment to first obtain an authorisation. An offence is committed if a person engages in conduct without the required authorisation. Regulation 5B of the Regulations provides that an occupier of premises specified in sch 2 to the Regulations shall not operate the premises for the purposes described in the schedule unless the premises were registered (registration being a form of authorisation for the purpose of s 50D). The balance of the regulation provides for a registration scheme.
(e) Section 56 provides that an occupier of prescribed premises commits an offence if s/he causes or increases or permits to be caused or increased an emission or alters or permits to be altered the nature of waste, noise, odour or electromagnetic radiation emitted 'from' the premises unless:
(i) the occupier is the holder of a licence issued 'in respect of the prescribed premises';
(ii) and 'so causes, increases, permits' an emission or 'permits or alters' the nature of the waste, noise, odour or electromagnetic radiation emitted 'in accordance with any conditions to which that licence is subject'.
23 Section 56 forms part of div 3 of pt V of the Act. That division is generally concerned with regulating emissions from prescribed premises.
24 The term 'emission' is defined by s 3(1) of the Act. The definition refers to a discharge of waste and to the emission of noise or odour. The term 'discharge' is defined to include a deposit of waste and to allowing or permitting it to escape or failing to prevent it from being allowed to escape. The definition of 'emission' and 'discharge' is expanded by s 3(2aa) to include a discharge or emission onto or into land or the atmosphere.
25 'Waste' is defined by s 3(1) of the Act to include 'matter whether liquid, solid, gaseous or radioactive and whether useful or useless, which is discharged into the environment'. The term 'environment' is defined to mean 'living things, their physical, biological and social surroundings, and interactions between all of these' (s 3(1) and see s 3(2)).
26 The term 'premises' is also defined by s 3(1). The term means 'residential, industrial or other premises of any kind whatsoever and includes land, water and equipment'. The term 'prescribed premises' is defined to mean 'premises prescribed for the purposes of Part V' of the Act. The definition of 'occupier' in s 3(1) recognises that different parts of premises may be occupied by different persons. As was noted earlier, the Regulations provide that the premises specified in sch 1 are prescribed premises for the purposes of pt V of the Act.
27 Section 57 concerns applications for a licence. There is no positive requirement to obtain a licence to use prescribed premises for their prescribed purpose (contrast r 5B of the Regulations and sch 2 premises); rather, the requirement for a licence appears from the exception to the offence created by s 56 of the Act. An application is to be made in the form and manner approved by the respondent. If the application is in an approved form and manner, the respondent is required to seek comments on the application from any public authority or person which or who in her or his opinion has a direct interest in the subject matter of the application. The respondent is also required to advertise and invite public comment on the application. Section 57(3) permits the respondent to grant a licence subject to such of the conditions referred to in s 62 as he or she specifies or to refuse to grant the licence after considering any comments that have been received. There is no express requirement that the respondent provide the applicant with an opportunity to respond to any comments that were received.
28 Section 59 permits the respondent to amend a licence by, among other things, 'redescribing the boundaries or area of the premises to which the works approval or licence applies', by redescribing the purpose for which the premises are to be used or by varying, removing or adding any condition to the licence. Section 59(2) provides that the licence may be amended on the application of the licence holder or on the initiative of the respondent.
29 Section 59B provides for the manner in which an amendment to a licence is to be made. The language of the section suggests that a distinction is drawn between the procedure to be followed where a licence holder applies to amend the licence and where the respondent proposes on his or her initiative to amend. The distinction is not made express but it would appear that only s 59B(1) applies where the licence holder seeks the amendment so that the procedure is similar to that which applies to an application for a licence. The procedures specified in s 59B(2) s 59B(6) would then apply to amendments proposed by the respondent.
30 However, it is not necessary to further consider the interpretation of s 59B. The parties did not address the issue in their submissions as there was no complaint by the applicant that the respondent had not adopted the correct procedure in considering its applications to amend the licences.
31 Section 62 and s 62A concern the conditions that may be imposed by the respondent in relation to a licence. Section 62(1) provides that a licence may be granted subject to such conditions as are considered to be 'necessary or convenient for the purposes of this Act relating to the prevention, control, abatement or mitigation of pollution or environmental harm'. Section 62A sets out examples of conditions that may be attached to a licence but nothing in the section or the Regulations prevents other conditions being attached.
32 The Definitions define 'landfill' to mean 'a site used for disposal of solid material (ie, is spadeable) by burial in the ground that is licensed as landfill under [the Act]'. Categories 63 to 66 of sch 1 to the Regulations concern landfill sites. Each category relates to what is described as a 'class' of landfill. The references to classes of landfill in the descriptions for categories 63 to 66 are derived from the Definitions.
33 The Definitions describe the type of landfill that falls within each class or more precisely, the types of waste falling within each class that may be disposed of in a specified category of prescribed premises. That can be further explained by reference to the following extract from table 1 that appears in the Definitions:
34 The Definitions further define what constitutes Type 1 Inert Waste, Type 2 Inert Waste and so on. For example, 'Inert Waste Type 1' is defined as 'non-hazardous, nonbiodegrable (halflife greater than 2 years) wastes containing contaminant concentrations less than Class I landfill acceptance criteria but excluding paper and cardboard (paper and cardboard are biodegradable materials and are therefore considered as putrescible waste), and materials that require treatment to render them inert (eg peat, acid sulfate soils)'.
35 The Definitions identify five classes of landfill. They also define:
(a) 'Class I landfill' as 'an un-lined landfill designed to accept inert wastes'.
(b) 'Class II landfill' as 'an un-lined landfill designed to accept putrescible and inert wastes'.
Material that will have no harmful effects on the environment and which consists of rocks or soil arising from the excavation of undisturbed material.
For material not from a clean excavation, it must be validated to have contaminants below relevant ecological investigation levels (as defined in the document Assessment Levels for Soils, Sediment and Water, Department of Environment, 2003).
(d) 'Special Waste Type 1' as 'waste which includes asbestos and asbestos cement products'.
36 The effect of the statutory scheme is that a person who holds a licence for 'prescribed premises category 63' may dispose of, for example, Type 1 Inert Waste without committing an offence.
37 Part 7 of the Waste Avoidance and Resource Recovery Act 2007 (WA) provides arrangements for the collection and application of a levy imposed by the Waste Avoidance and Resource Recovery Levy Act 2007 (WA) (the Levy Act). The Levy Act enables a levy to be prescribed in respect of waste received at 'disposal premises' (s 4). The term 'disposal premises' is defined to mean 'premises which are used for the purpose of receiving waste and in respect of which the occupier is required to hold a licence, whether or not such licence is in force' (s 3).
38 The Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) (the Levy Regulations) provide for a levy to be paid by the licensee or occupier of a licensed landfill. The term 'licensed landfill' is defined to mean premises specified in categories 63 to 65 of sch 1 to the Regulations; the term 'landfill premises' is defined to refer to a 'licensed landfill'.
39 Regulations 10 to 12 of the Levy Regulations concern 'category 63 licensed landfills'. They provide for a scheme by which the licensee of a category 63 licensed landfill is required to:
(a) have a survey undertaken of the 'premises' for the purpose of establishing a base from which the volume of waste subsequently disposed of to landfill on the premises can be measured;
(b) cause a quarterly survey to be undertaken of the 'premises' for the purpose of calculating the volume of waste disposed to landfill during that quarter;
(c) pay a levy calculated by reference to the number of cubic metres of waste 'to which these regulations apply received at the landfill premises during the return period determined in accordance with regulation 10'.
40 The effect of r 10 r 12, read with the relevant definitions in the Levy Regulations and the Regulations, is that the occupier/licensee of category 63 prescribed premises for the purpose of the Act and Regulations is the licensee of a 'category 63 licensed landfill' for the purpose of the Levy Regulations and is required to survey whatever constitutes the category 63 prescribed premises and pay a levy on the volume of waste disposed of to landfill on those premises.
41 The Abercrombie licence was granted on 31 March 2005. The licence was for a term of five years, commencing 28 April 2005 (see annexure 'RS3' to the affidavit of Robert Allen Douglas Sippe sworn on 21 May 2010 (Mr Sippe's first affidavit); Mr Sippe is the managing director of the applicant).
42 The Abercrombie licence comprised six pages: a cover page that recorded the details of the licence and following pages that contained the conditions attached to the licence and two attachments. The cover page was divided into four sections. Those sections were headed:
(a) 'licensee and occupier of premises' the details of the applicant appeared under the heading;
(b) 'name and location of premises' the name of the premises was given as 'Abercrombie Road Resource Recovery Centre', the location as lot 115 on plan 48295 and lot 2 on plan 29392;
(c) 'prescribed premises category' a box appeared under this heading which referred to categories 62, 63 and 67A;
(d) 'conditions of licence' - what appeared under the heading made it clear that the licence was issued subject to the conditions set out in the following pages.
43 The two attachments comprised a plan of the centre (the plan that the applicant sought to replace by its application to amend the licence) and a plan depicting the location of monitoring bores.
(a) Contained a section of definitions. The definitions included a definition of the term 'clean fill' that differed from the definition given in the Definitions: clean fill was defined to mean 'materials that will have no harmful effects on the environment and which consists of rocks or soil arising from the excavation of undisturbed material'. That definition corresponded with the first part of the definition of the term appearing in the Definitions but excluded the second part.
(b) Specified that the applicant should only accept and bury clean fill, inert waste Type 1 and 'special waste Type 1' (presumably, 'type 1 specific waste' according to the Definitions) as landfill. Accordingly, the applicant could not accept and bury as landfill all types of Class I inert landfills without exposing itself to the risk of committing an offence.
44 The Wanneroo licence was issued on 19 February 2009. The licence was for a term of five years commencing on the date on which it was granted. The form of the licence was similar to the licence for the Abercrombie centre. The conditions to the licence restricted the applicant to accepting and burying as landfill, clean fill (defined in the same way as the term was defined in the Abercrombie licence) and inert waste Type 1. The prescribed premises categories for the licence were categories 61A, 63 and 67A. The attachment (the aerial photograph) was marked to show the 'premises boundary' and the location of monitoring bores.
45 The applicant applied by letter dated 17 April 2009 (attachment 'RS5' to Mr Sippe's first affidavit) to amend the Abercrombie licence by, among other things:
(a) replacing the plan attached to the licence with the plan prepared by the applicant that identified the category 63 area by shading and survey coordinates;
46 The letter stated that it was proposed to only use part of the centre for 'category 63 activities'. Four reasons were identified in the letter for why the applicant had 'contracted the area of its category 63 licence':
(a) The new designated category 63 area would only be used for asbestos, asbestos containing soils and materials that 'do not meet (or we don't believe would meet) the EIL criteria contained in the [Department's] document "Assessment Levels for Soil, Sediment and Water" 2003, but do meet (or we believe them to meet) Class I acceptance criteria as contained in [the Definitions]' (the reference to 'EIL' criteria is presumably to 'ecological investigation levels' as referred to in the definition of 'clean fill' appearing in the Definitions).
(b) The balance of the centre where there was a void requiring fill to render it suitable for its dominant purpose as a light industrial development site would continue to be treated as a 'civil works site'. The material that was to be used as fill in the civil works site would 'meet the equivalent environmental quality' of 'clean fill' as defined in the Definitions. A validation procedure had been prepared but the Department had advised that civil works sites were not prescribed premises and were regulated by the Department of Planning and Infrastructure and local government authorities rather than by the Department.
(c) The Waste Authority had recognised that two categories of clean fill did not cause pollution: 'virgin excavated natural material' and 'nonnatural materials that did not have a potential to leach such that investigation levels under the Contaminated Sites Act were not triggered'. The applicant's letter further stated that 'clearly material that does not have the potential to cause pollution and is being recycled or reused for a beneficial end use cannot, by definition, be a waste'.
(d) The applicant had been advised that remediated but unusable acid sulfate soils could not be disposed of in a 'Class I site' but there was no constraint on the soils being disposed of as clean fill in a civil works site. It was said that this 'incongruous situation' would be resolved 'by contracting the relevant Category 63 area'. Reference was made to correspondence exchanged between the applicant and the Department about that matter but that correspondence was not attached to Mr Sippe's affidavit.
47 The applicant applied on 10 January 2010 to renew its licence for the Abercrombie centre. The application was made on-line. Mr Sippe stated that the application was 'for the issue of a fresh licence for [the Abercrombie centre] with the licensed area for category 63 activities to be confined to the area of the plans attached to the application of 17 April 2009' (Mr Sippe's first affidavit, par 12). Further reference is made to the application in the next section of the reasons but I accept Mr Sippe's statement that this was the intended effect of the application so far as the applicant was concerned.
48 The applicant requested by letter dated 30 June 2009 that similar amendments to those sought for the Abercrombie licence be made to the Wanneroo licence (annexure 'RS5' to Mr Sippe's first affidavit). It gave the same reasons for the amendments as had been advanced for the amendments to the Abercrombie licence, except that it was not proposed to accept and bury asbestos or asbestos containing soils in the designated category 63 area. The applicant's letter enclosed an aerial photograph similar to that which was attached to the licence but on which lines had been added to depict an area within the centre which it was proposed would only be used for 'category 63 activities'. A survey plan of the centre with a shaded area indicating the proposed boundaries of the area to be used for those activities was also provided. Again, the survey plan included the dimensions of the proposed area and provided the survey coordinates for the corners to the bounded area.
49 Mr Sippe stated in his first affidavit, which was made in support of the applicant's application for a show cause order, that (par 11):
[The applicant's] reasons for wanting to reduce the area of the licences for category 63 to areas used for the activities on the sites included ensuring the [Department's] jurisdiction extended only to the relevant areas of the site and not beyond. This is because otherwise there may be additional requirements placed on [the applicant] including for example, [the Department's] request for volumetric survey of the whole of the sites, not just the areas designated by [the applicant] for category 63 activities.
50 Mr Sippe annexed to his affidavit a copy of a letter from the Department dated 6 January 2010 regarding volumetric surveys under the Levy Regulations (annexure 'RS6'). The letter indicated that a previous quarterly report submitted by the applicant incorporated volume calculations for the Abercrombie and Wanneroo centres performed by reference to the proposed boundaries for the category 63 areas. The Department advised that the reports were required to provide volume calculations for the entire licensed areas until such time as any boundary amendment was made to the licences. The applicant was requested 'as required by Regulation 10' to submit volumetric survey reports for certain nominated periods 'which reflect the proper licensed boundaries'.
51 Mr Sippe made a further affidavit that was tendered at the hearing of the show cause order (affidavit sworn 15 June 2011) (Mr Sippe's second affidavit). Mr Sippe stated in that affidavit that the applicant would suffer 'considerable adverse impacts' if all of the Abercrombie and Wanneroo centres were the subject of a 'category 63 licence' (par 8):
(a) The Department refused to permit the depositing of remediated acid sulfate soils within a category 63 licensed area so that the applicant would not be able to dispose of those soils at the centres.
(b) The applicant would be required to incur the expense of a regular volumetric survey over the entire area of each centre.
(c) The Department contended that the applicant would be obliged to pay a levy on all material deposited across the entire area of each centre regardless of the nature or classification of the material. I infer that Mr Sippe formed that understanding as the Department's letter of 10 January 2010 referred to r 10 of the Levy Regulations. As previously noted, the levy was calculated by the number of cubic metres of waste received during the quarter 'determined in accordance with regulation 10'.
52 Those matters were not put by the applicant in its applications to amend the licences. However, it was clear from the evidence given by Mr Vasel that he was aware that the applicant considered that the proposed amendments to the licences would affect its liability to pay the waste levy under the Levy Regulations.
53 The Department advised the applicant by letter dated 15 April 2010 that its application for a new licence in respect of the Abercrombie centre had been granted (annexure 'RS7' to Mr Sippe's first affidavit). The letter stated that:
The new licence does not include the plan delineating the area in which [the applicant] proposes to confine the disposal of inert waste which was enclosed with your correspondence dated 17 April 2009. In that correspondence you requested that the plan be substituted for Attachment 1 of the existing licence. The purpose of Attachment 1 of the existing licence (and Attachment 1 of the new licence) is to depict the boundary of the licensed premises. As the plan does not describe the boundaries or area of the licensed premises, [the Department] does not consider it an appropriate substitute for Attachment 1. Moreover, as the plan does not relate to any specific licence conditions, [the Department] considers that it would serve no purpose in the new licence and therefore has not been included. This of course does not mean that [the applicant] is prevented from confining the disposal of inert waste to a particular area within its licensed premises.
54 The new licence incorporated as attachment 1 an aerial photograph of the area occupied by Abercrombie centre marked to indicate the 'premises boundary'. The designated area comprised the entire centre.
55 The Department further advised the applicant by letter dated 16 April 2010 that it intended to amend the Wanneroo licence (annexure 'RS7' to Mr Sippe's first affidavit). It was stated that the amended licence did not include the plan depicting the area that the applicant proposed to confine the disposal of inert waste that had been included with its letter dated 30 June 2009. The letter repeated the statement made in the Department's letter of 15 April 2010 as to why it was not proposed to incorporate the plan submitted by the applicant as an attachment to the licence.
56 Mr Sippe stated in his first affidavit that inert material received by the applicant at the centres was categorised into 'clean fill' that was deposited into a void designated as a 'civil works' area and category 63 landfill that was deposited in a void that was used exclusively for burying that type of fill. Material that was suitable for resale or which could only be disposed of at other licensed disposal centres was removed prior to burial. The deposited material was compacted within the voids and mixed with sand so as to form a solid base and surface for the future subdivision and development of the land. The object was to return the land to its best use (Mr Sippe's first affidavit, par 6).
57 The affidavit did not refer to any other activity undertaken at the centres apart from receiving and categorising inert material and depositing clean fill and category 63 landfill in the designated voids.
58 The respondent tendered additional evidence about the applicant's activities at each centre on the return of the show cause order. That evidence disclosed that the activities undertaken by the applicant at the centres were more diverse and complex than Mr Sippe's evidence had described.
59 Ms Rosa was an environmental officer within the Swan Region branch of the Regional Services Division of the Department. She inspected the Abercrombie centre in June 2009, after the Department received the applicant's application to amend the licence for the centre. She inspected the centre again in April, June and August 2010.
60 Ms Rosa stated that areas of the Abercrombie centre were used for the treatment of acid sulfate soils, bioremediation of other contaminated soils and mulching and composting green waste (affidavit of Rebecca Kate Rosa sworn 18 May 2011, pars 10 and 40 and following). The centre included a sorting area and two stormwater evaporation ponds.
61 Ms Rosa produced an aerial photograph of the centre on which the area that was used by the applicant for each activity was marked (attachment 'RKR13'). The photograph, as marked, identified six areas within the centre that were used for disposing of category 63 landfill; composting green waste; bioremediating hydrocarbon contaminated soil; bioremediating acid sulfate soil; sorting material and depositing clean fill (the 'civil works' area). There was also an 'excavation area' marked on the photograph. Ms Rosa explained that the excavation area formed part of the category 63 area designated by the applicant in its application to amend the Abercrombie licence (par 56).
62 Ms Rosa also produced a number of photographs illustrating the activities undertaken by the applicant at the centre. The photographs were taken during her April, June and August 2010 inspections. It is not necessary to further describe those photographs as her description of the activities undertaken by the applicant at the Abercrombie centre was not disputed.
63 Ms Rosa stated that during her visits she observed plastics and timber mixed with other waste in the 'civil works' area of the Abercrombie centre; that is, within the area designated by the applicant for disposing of clean fill (Ms Rosa's affidavit, pars 22, 23, 66, 72, 77, 83, 95 and 96). As would be expected, Ms Rosa also observed materials of that kind in the area used for sorting waste (pars 74 and 83).
64 Ms Rosa gave evidence regarding the applicant's online application to renew the Abercrombie licence. No copy of the actual application had been retained. Ms Rosa produced a printout of the application that incorporated information that she had subsequently entered from time to time. The application described the premises in the same terms that appeared in the cover page of the Abercrombie licence. Ms Rosa stated that she could not recall altering the description from whatever had been submitted by the applicant (par 24). In any event, Ms Rosa sent an email to Mr Sippe indicating that the amendments that had been requested to the licence would be considered when reviewing the application to renew the licence (attachment 'RKR-8').
65 Ms Fox is an environmental officer within the Booragoon office of the Swan Region branch of the Department. Ms Fox inspected the Wanneroo centre in May and late July 2010.
66 Ms Fox stated that she observed various activities being undertaken by the applicant in different areas within the centre: a skip bin storage area; a hard stand area on which sand, crushed limestone and soil had been stockpiled; a 'civil works' area; an area for depositing category 63 landfill; an area for sorting material; an area where peat was stockpiled; an area for mulching green waste; an area where unprocessed green waste was stockpiled; an area from which limestone was excavated; and an area where grass mixed with soil was stockpiled (affidavit of Lauren Iona Fox made on 18 May 2011, par 12 and following). Ms Fox produced an aerial photograph of the centre marked to show the different areas where the activities that she observed were undertaken within the centre (attachment 'LIF5'). She also produced various photographs showing the activities that she observed during her inspection. Again, it is not necessary to describe those photographs as the applicant did not dispute Ms Fox's evidence concerning the activities undertaken at the Wanneroo centre.
67 Ms Fox stated that she had observed concrete, bricks, timber, plastics, metal sheeting and cardboard in the waste deposited in the area designated by the applicant as its 'civil works' area (pars 45 and 47). She also observed a stockpile of peat (a putrescible waste) that appeared to be partly located within the area designated by the applicant in its category 63 area for the centre (par 27).
68 Ms Fox also gave evidence about attending a meeting held on 19 November 2009 between representatives of the Department and Mr Sippe and another representative of the applicant (par 7). The purpose of the meeting was to 'further clarify the amendments proposed by the applicant in the Wanneroo amendment application and its similar application to amend the Abercrombie licence and obtain information regarding regulatory issues associated with the proposed amendments of concern to [the Department]' (par 7). According to Ms Fox, Mr Sippe confirmed that the applicant wished to carry out its category 67A and category 62 activities over the whole of the area occupied by the Wanneroo and Abercrombie centres and that it only sought to limit the extent of its category 63 activities to the category 63 areas on the plans that it had submitted (par 8).
69 Mr Donis is an inspector employed by the Department. He carried out a number of inspections of the Abercrombie and Wanneroo centres (affidavit of James Donis sworn 18 May 2011, par 24). He took photographs of various areas of the Wanneroo centre during inspections conducted on 27 January and 12 February 2010. Some of the photographs depicted concrete and other building materials that had been deposited in what Mr Donis understood to be the civil works area within the centre (photographs 6 9 of attachment 'JD 2'; photographs 3 9 of attachment 'JD 4').
70 Mr Donis also stated that he had noted during his various inspections that trucks arriving at the centres with waste to be dumped were directed to either the civil works or category 63 areas. However, the loads carried by the trucks were not always inspected and Mr Donis had never seen samples taken from the waste (par 25).
71 As previously mentioned, Mr Sippe made a second affidavit in support of the application for orders absolute. The affidavit was made after the respondent had filed the affidavits on which he intended to rely. Mr Sippe did not provide further evidence on the various matters stated by Ms Rosa, Ms Fox and Mr Donis in their affidavits.
72 As has been explained, the applicant's application for a show cause order assumed that the respondent had refused to amend the licences because he was not satisfied about the way in which the category 63 areas had been delineated in the plans submitted by the applicant. Consequently, the applicant provided a surveyor's report in support of its application for a show cause order (annexure 'RS8' to Mr Sippe's first affidavit) that explained how the shaded area in the plan adequately described the proposed licence areas by the use of survey coordinates based on the Perth Coastal Grid 94 and why those coordinates provided the boundaries of the shaded areas in the plans with 'legal traceability'. The applicant submitted on the basis of the surveyor's report that the respondent's decisions proceeded on an error of fact that affected his jurisdiction to grant or refuse the applications to amend the licences: that the plans submitted by the applicant did not depict the boundaries of the proposed licensed premises (applicant's submissions in support of application for order nisi, par 37 and par 51).
73 However, the applicant's primary argument was expressed in the following submissions on why it was contended that the respondent had acted beyond power and unreasonably (applicant's submissions in support of application for an order nisi, pars 23, 24, 26 and 43):
The CEO does not have power to grant a licence other than the licence applied for. The CEO cannot grant a licence concerning a different kind of waste to the waste in respect of which the licence was sought. Similarly, the CEO has no power to grant a licence that applies to an area of land for which no licence was sought.
The CEO's decision to grant the fresh Abercrombie Licence over the entire Abercrombie Road Site is beyond power. No such licence was sought and, therefore, there was no power to grant it.
The new Abercrombie Road Licence pertained to an area of land in respect of which no licence was sought. Granting a licence to a person who did not seek and did not want a licence over a particular area is plainly unreasonable.
For the same reasons as set out above with respect to the issue of the new Abercrombie Licence over the entirety of the Abercrombie Road Site when [the applicant] only sought the issue of a licence in respect of the Abercrombie Area, the CEO's refusal to amend the Wanneroo Licence following [the applicant's] request for the Wanneroo Licence to be amended so as to reduce the area to which the licence applied was plainly unreasonable.
74 The show cause order was granted on the following grounds:
(a) the grant of the Abercrombie licence was ultra vires in that, insofar as the licence related to waste referred to in category 63 of sch 1, the licence was granted over an area greater than the area in respect of which the applicant had applied for a licence;
(b) the respondent's decisions to grant the licences over the whole of the area occupied by each centre were irrational as the applicant had only applied for the grant of a licence over prescribed premises which, in respect of the category 63 landfill, comprised the category 63 areas; further or alternatively, the decisions were based on the false premise that the plans submitted by the applicant did not describe the boundaries or area of the category 63 areas; further or alternatively, the decisions did not include any reasons capable of providing any reasonable basis for the decisions that had been made;
(c) the respondent's decisions were so unreasonable that no reasonable decision maker could have made the decisions the decisions were said to be unreasonable for the same reasons that they were characterised as being irrational;
(d) the respondent had failed to accord the applicant natural justice by granting the Abercrombie licence over the whole of the Abercrombie centre without first giving the applicant any or any adequate notice of the possibility of a licence being granted on those terms and/or any or any adequate opportunity to be heard with respect to the area over which a licence would be granted in relation to the category 63 landfill similar grounds were raised in relation to the respondent's decision to refuse to amend the Wanneroo licence according to the applicant's application;
(e) the respondent had taken into account irrelevant considerations insofar as he had regard to the area in respect of which licences had been previously granted; further or alternatively, to the extent that he had regard to the fact that the plans depicting the category 63 areas did not relate to any particular condition imposed by the respondent;
(f) the respondent had failed to take into account, alternatively, had failed to adequately take into account the fact that the applicant had only applied for the grant of a licence over the category 63 areas;
(g) the respondent had made manifest errors of fact in that he had determined that the plans submitted by the applicant with the applications to amend the licences did not depict the boundaries of the areas to be licensed.
75 Mr Vasel is the manager of the works approvals and emissions licensing section within the licensing and permitting branch of the Environmental Regulation Division of the Department. He is a delegate of the respondent authorised under s 20 of the Act to exercise all of the respondent's powers under s 54, s 57, s 59, s 59B, s 62, s 62A and s 64 of the Act. As the respondent's delegate, Mr Vasel made the decisions on the applicant's applications to amend its licences. He provided a detailed explanation of the process by which he made the decisions on the applicant's applications and the reasons for the decisions (affidavit of Peter Vasel made on 18 May 2011).
76 Mr Vasel commenced by describing his understanding of the disposal of inert landfills. He stated that:
(a) According to the Definitions, inert waste was solid waste that was largely nonhazardous, nonbiodegradable, not flammable and not chemically reactive. The waste did not, by itself, pose a significant risk of pollution (Mr Vasel's affidavit, par 6 and par 7).
(b) In his experience, it was 'invariably the case that variable quantities of other types of waste, such as putrescibles waste, metal, asbestos, contaminated soil, chemical waste and liquid waste, are disposed of by burial alongside inert waste within inert landfills' (par 7).
(c) Inert waste type 1 as defined by the Definitions included materials such as bricks, concrete, plaster and cladding resulting from the demolition, construction, refurbishment and alteration of buildings. Metals, putrescible waste (such as timber) and other types of waste often became mixed in with the inert materials. Further, it was often difficult, and in some cases impossible, to completely remove all noninert waste prior to deposition of landfill. Consequently, 'unavoidable small quantities' of paper, plastics, glass, metal and timber associated with bricks and concrete and other inert building and demolition waste may be considered as 'inert waste type 1' according to the Definitions (pars 8 10). The extent to which noninert waste was buried in inert landfills depended, in part, on the extent to which landfill operators inspected and verified loads of waste as they arrived at their landfills before deposit within active disposal areas. It also depended on the extent to which operators required customers to test and validate that any contaminated or possibly contaminated soils containing contaminant concentrations less than class 1 landfill acceptance criteria as set out in the Definitions prior to disposal (par 12).
(d) Inert landfills may include inert waste that was flammable and will generate emissions in the form of litter, dust, odour, contaminated stormwater discharges, noise and exhaust fumes (from trucks and other vehicles used to transport the waste and from equipment required to sort, spread and compact waste). The disposal of noninert waste in inert landfills will also create an environmental risk. Department officers imposed a range of conditions in licences granted to inert landfills to regulate those risks (pars 14 16).
(e) Mr Vasel considered that both limbs of the definition of 'clean fill' referred to naturally occurring materials consisting of rocks and soil even though the second part of the definition did not expressly refer to natural materials. His view was based on the subject matter of the Assessment Levels for Soil, Sediment and Water document published by the Department (the Assessment Document) and which was referred to in the definition of 'clean fill' contained in the Definitions (Mr Vasel's affidavit, par 61).
77 The applicant made a number of submissions at the hearing of the show cause order regarding Mr Vasel's evidence. However, no submission was made on his evidence concerning the disposal of inert waste.
78 As has been noted, the applicant confirmed that it intended to continue using the centres for prescribed purposes other than disposing of category 63 landfill at the meeting held between Mr Vasel and Mr Sippe and others on 19 November 2009 (Ms Fox's affidavit, par 9; and see the email from Mr Sippe to Ms Fox dated 27 October 2009 (attachment 'LIF1') and the letter dated 14 January 2010 from the applicant to the Department (attachment 'RKR3')). Mr Vasel described the Department's and his approach to identifying prescribed premises for licensing purposes where it is proposed to undertake multiple prescribed activities at a site:
(a) Department officers considered all of the facts and circumstances of the particular case in determining the premises or boundaries of premises to be licensed. Consequently, there was not a policy of requiring licensed premises to correspond with lot boundaries (par 17).
(b) Mr Vasel generally considered what area of land was in the occupation or control of the applicant when identifying the boundary of premises to be licensed. He also considered the area that was to be used to carry out the activity referred to in the relevant category of prescribed premises. In the case of category 63 landfill sites, Mr Vasel considered not only the area within which the landfill was to be buried but also associated areas such as the entrance to premises where trucks transporting the waste were received and loads inspected, internal roads, areas where the waste might be stored prior to burial and areas where equipment such as spreaders and compactors were stored (pars 18 and 19).
(c) There were instances where it was necessary to consider whether multiple licences should be issued in relation to sites that were to be used for more than one prescribed purpose. Mr Vasel's approach in those instances was to consider whether 'the different categories of prescribed premises are proposed to be conducted as separate and distinct premises or whether they are proposed to be conducted as part of a single larger premises/operation'. In particular, Mr Vasel considered whether (par 21):
(i) the different activities referred to in each category of prescribed premises were proposed to be carried out on different parts of the same parcel of land or whether they were to be conducted on separate parcels of land;
(ii) the extent to which the different categories of prescribed premises would share common areas and resources;
(iii) the degree of similarity between the different activities described in each category of prescribed premises;
(iv) the extent to which the different categories of prescribed premises would require similar licence conditions.
(d) Mr Vasel's practice was to issue a single licence covering the total area of the site if the different categories of proposed prescribed premises were to be conducted together as a part of a single operation (par 22).
(e) In identifying the boundaries for prescribed premises, Mr Vasel considered the area required for implementing environmental protection measures, the boundaries proposed by the applicant, the ease of description of the boundaries for the licence and the ability to identify the boundaries on the ground (pars 23 25).
79 Mr Vasel described the inquiries made by the Department following the applicant's applications to amend the licences. In summary, Mr Vasel stated that:
(a) Following her inspection of the Abercrombie centre on 25 June 2009, Ms Rosa sent an email to another section of the Department seeking advice on the definition of 'clean fill' under the Definitions. Ms Rosa stated in that email that 'the concerns at this stage are that [the applicant] is trying to avoid paying landfill levies by reducing their licensed landfill area, and that the current material on site being referred to as "clean fill" and "separated" does not meet the landfill guidelines definition of clean fill as it was seen (from our vantage point on site) to contain plastics and other materials within the soil mix'. Ms Rosa also sought advice on the impact of the landfill levy legislation on the amendments proposed by the applicant and the financial consequences for the Department (attachment 'RKR1'; and see Ms Rosa's affidavit, pars 12 - 14).
The advice given to Ms Rosa also stated that only waste that met certain criteria could be regarded as 'clean fill' that did not require a licence for its disposal: 'uncontaminated rocks and soil arising from excavation of undisturbed materials ie VENM' (virgin excavated natural material); other inert material validated to meet relevant ecological investigation levels (EILS) and material that the operator ensured was below the ASLP1 and CI1 levels and in respect of which, the operator was able, if requested, to provide 'the data demonstrating compliance'. The advice was said to have been provided by Peter Skitmore. Correspondence attached to Mr Sippe's first affidavit identified Mr Skitmore as the manager of the Department's Licensing and Permitting Branch. I inferred that Mr Vasel was subordinate to Mr Skitmore in the Department's managerial structure.
(c) Mr Sippe was asked at the meeting held on 19 November 2009 how the applicant would ensure that every load of waste deposited into its civil works area was clean fill. Reference was made to an instance in which it had been observed that there had been no clear separation of inert waste from clean fill in the designated civil works area at the Abercrombie centre. Mr Sippe indicated that not every load of waste at the applicant's premises was sampled on arrival so that it was not possible to confirm that all material to be deposited into the designated civil works areas was clean fill according to the Definitions (Mr Vasel's affidavit, par 47).
(d) Ms Fox sent an email to Mr Sippe on 9 December 2009 requesting further information concerning the proposed amendment to the Wanneroo licence. The information sought included advice on the nature of the clean fill material received at the centre; 'written management procedures which ensure that waste is kept within defined areas at the premises ie proper QA/QC procedure which does not permit the disposal of "waste" in clean fill areas at the premises'; inspection procedures and procedures for reporting to the Department on 'a breakdown of the nature of the material accepted at the premises' (attachment 'LIF 3').
(e) Mr Sippe responded to the email by referring to a management plan and by describing the steps taken to inspect and separate material received at the centre (attachment 'LIF 3'). He advised in relation to the nature of the 'clean fill' that:
... [the applicant] has used the definition of 'clean fill' contained in the [Definitions] ... which in turn refers to criteria contained in Contaminated Sites Management Series: Assessment Levels for Soil, Sediment and Water ... which set out criteria for EILs because if civil works sites are not prescribed premises then they aren't licensed under the Environmental Protection Act. [The applicant] has taken the position that notwithstanding this (ie that [the Department] doesn't regulate the civil works site) that the Company will protect the environment from potential contamination by meeting EILs.
(f) Ms Rosa wrote to Mr Sippe on 7 January 2010 requesting further information in respect of the application to amend the Abercrombie licence. Generally, Ms Rosa sought similar information to that which had been requested by Ms Fox (attachment 'RKR2'). Mr Sippe responded by letters dated 14 and 15 January 2010 (attachments 'RKR3' and 'RKR4'). He stated in his response of 14 January:
[The Department] seems concerned about clean fill being used in the civil works area. This appears inconsistent with its position regarding regulatory disinterest in the large quantities of 'clean fill' which are deposited annually throughout the metropolitan area from unknown sources into unknown environments with unknown level of potential contaminants in particular asbestos.
He described the process by which material received at the centre was separated according to whether it met the 'EIL criteria' contained in the Assessment Document. Material that met the criteria was deposited in the civil works area of the centre. Material that did not meet the criteria but did satisfy the 'class 1 acceptance criteria' as contained in the Definitions was deposited in the category 63 area.
(g) Mr Vasel commented in his evidence on Mr Sippe's responses to the requests for information made by Ms Fox and Ms Rosa. He characterised Mr Sippe's response as questioning the Department's interest in and power to regulate the clean fill being deposited in the 'civil works areas' at each centre. He stated that his interest in the nature of that material was to ensure that it was, in fact, clean fill and not inert waste or some other type of waste such as putrescible waste, asbestos or contaminated soil. That was particularly as a result of concerns that had been expressed by Ms Rosa following her inspection of the Abercrombie centre about inert waste being disposed of as clean fill (Mr Vasel's affidavit, pars 51 52).
(h) By email sent on 13 January 2010, Ms Rosa requested further information relating to the renewal of the Abercrombie licence (attachment 'RKR 8'). The applicant replied with an updated environmental assessment report and a management plan for the Abercrombie centre (attachment 'RKR 9' and attachment 'RKR 11'). The management plan described in some detail the activities undertaken by the applicant at the centre.
(i) Mr Vasel was provided with photographs of the Wanneroo centre taken by Mr Donis in early February 2010 (par 58). Mr Vasel described the photographs as depicting 'large quantities' of bricks and concrete deposited at the centre outside the area that had been identified by the applicant as its category 63 area. Mr Vasel considered that the bricks and concrete did not constitute 'clean fill' according to the Definitions and the Assessment Document (as bricks and concrete were not naturally occurring materials) (pars 58 62).
(j) The Department sent a letter to Mr Sippe on 27 January 2010 referring to its requirements for 'the validation of clean fill loads in this case'. Those requirements were said to relate to the applicant's application to amend its licence for the Abercrombie centre. The letter stated that 'the intention is for [the applicant] to provide a proposal to [the Department] that demonstrates a methodology of checks/sampling to be undertaken on waste loads accepted to the site as clean fill, to ensure that all material accepted in this area will meet the clean fill definition. The proposed method of checking/sampling loads will be subject to review and approval by [the Department]' (attachment 'RKR5').
(k) Mr Sippe provided a document entitled 'Sampling and management response protocol for validating clean fill used in its civil works sites' by letter dated 23 February 2010. The accompanying letter queried the Department's 'jurisdiction' over the clean fill operations on civil works areas within the centres (attachment 'RKR6').
(l) Mr Vasel reviewed the document provided by Mr Sippe and concluded that the protocol was insufficient as it did not provide for sampling or analysis of material to be deposited in the clean fill areas prior to disposal. Rather, the protocol allowed for samples to be taken for analysis for every 10,000 cubic metres of material after deposition into the clean fill areas. Mr Vasel considered the material could not be regarded as clean fill according to the Definitions and the Assessment Document if it had not been validated at the time of disposal. Further, the protocol did not adequately identify the circumstances in which sampling would be undertaken (Mr Vasel's affidavit, pars 65 66).
(m) Mr Vasel consulted with other officers of the Department following receipt of the protocol from the applicant (par 67). In early March 2010, Mr Vasel and Mr Skitmore spoke with Mr Sippe by telephone. According to Mr Vasel, it was explained to Mr Sippe that 'the [Department] could possibly attach to each licence a diagram which simply reflected where within the licensed premises the applicant would operate its inert landfill, however this would not achieve anything or alter its obligations as licensee as the applicant still wanted to operate prescribed premises over the whole of the [Abercrombie centre] and the [Wanneroo centre] and the licences would continue to apply to the whole of the premises'. Mr Sippe was also that the proposed amendments would not relieve the applicant of its liability to pay the landfill levy on clean fill buried within each centre but that the applicant could achieve its objective of creating a 'civil works site' which was not regulated by [the Department] if the relevant areas were extracted from the outer boundary of the licence and only accepted clean fill. According to Mr Vasel, Mr Sippe did not dispute that it wanted the whole of the Abercrombie and the Wanneroo centres to remain covered by the licences but he indicated that the applicant still wished to proceed with the proposed amendments to the licenses (pars 84 - 85).
(n) Mr Vasel was provided with a copy of the environmental assessment report for the Abercrombie centre in March 2010. The report appeared to provide further confirmation that the applicant intended to continue using the entire area occupied by the Abercrombie centre for its different categories of prescribed premises (par 87).
80 Mr Vasel's reasons for rejecting the applications to amend the licences were in summary:
(a) The attachments to each licence were not incorporated by reference into the description of the licensed premises given in the cover sheets. Accordingly, Mr Vasel did not consider that the 'bare' substitution of the plans submitted by the applicant would 'effect any reduction in the outer boundary of the licensed premises' (Mr Vasel's affidavit, pars 69 and 70).
(b) The substitution of attachment 1 to the Wanneroo licence with the applicant's plan would interfere with the operation of condition 3 to the licence (obtaining groundwater samples from monitoring bores depicted on attachment 1) (par 69; note that Mr Vasel referred to condition 4 in his affidavit but that appears to have been a typographical error see Mr Sippe's first affidavit at pages 65 and 153).
(c) Amending the licences to describe the premises covered by the licences by reference to the category 63 areas would confine the area in which the applicant could conduct its other prescribed activities to the category 63 areas (pars 71 74).
(d) The category 63 area delineated in the plans submitted by the applicant did not depict and describe the whole of the area used by the applicant in each centre for its category 63 activities (par 76):
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'.
81 Mr Vasel also considered whether the plans submitted by the applicant could be incorporated into the licences 'to recognise the area delineated in the Wanneroo Cat 63 diagram and the Abercrombie Cat 63 diagram as an internal operational boundary within the licensed premises' (Mr Vasel's affidavit, par 78). However, he could not see what would be achieved by that arrangement; in particular, he did not consider that the arrangement would reduce the applicant's liability to pay the landfill levy under the Levy Regulations (pars 79 83).
82 It is suggested in W Wade and C Forsyth, Administrative Law (10th ed, 2009) that a decision maker has a duty of candour to the court and must reveal why a challenged decision was made where permission to apply for judicial review is granted (440). The comments of Sir John Donaldson MR in R v Lancashire County Council, Ex parte Huddleston [1986] 2 All ER 941, 945 946 are cited as authority for that proposition. Mr Vasel has fully discharged any duty of that kind that he might have owed to the court. However, it must always be borne in mind in considering such evidence that, 'the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error': Collector of Customs v Prozzolanic [1993] FCA 456; 43 FCR 280, 287. Those comments were made in relation to reasons for decision delivered by the Administrative Appeals Tribunal. The comments are even more compelling when the challenged decision concerns the exercise of a statutory discretion forming part of a regulatory regime of the kind provided for in pt V div 3 of the Act and the decision maker may be presumed to have some specialist knowledge about the subject matter of the discretion.
83 There were certain matters arising out of the reasons given by Mr Vasel that are relevant to further identifying the issues to be determined in this application:
(a) I did not fully understand the inference that Mr Vasel drew from the fact that the attached plan and aerial photograph were not incorporated by reference into the description of the licensed premises given in the covering page for each of the licences that had been issued (Mr Vasel's affidavit, par 69 and par 70). Mr Vasel apparently concluded that the plan and the aerial photograph were not relevant to the identification/description of the licensed premises so that the substitution of the plans submitted by the applicant would not effect a substantive amendment to the licences and in particular, to the licensed areas. That appears to be inconsistent with the advice given to Mr Sippe about why the requested amendments had not been made. Mr Vasel stated in his letters dated 15 and 16 April 2010 (attachments 'RS7' and 'RS8') that the purpose of the attachments was to depict the boundaries of the licensed premises. The point made in the letters was that it was necessary for the entire centre to be licensed (as depicted in the attachments to the licences) and not that the attachments (and the plans submitted by the applicant) were irrelevant to the identification and description of the licensed premises.
(b) In any event, Mr Vasel's concern could have been readily addressed, and the applicant's objective, achieved by simply incorporating a reference to the attachments in the description of the licensed premises in the cover pages or by an amendment to the description to separately identify the category 63 areas as prescribed premises.
(c) A similar observation can be made about the identification in attachment 1 to the Wanneroo licence of the groundwater monitoring sites and the incorporation by reference of the attachment into condition 3 to the licence. The groundwater monitoring sites could have been added to the plan submitted by the applicant for the Wanneroo licence or a second attachment incorporated into the licence and the crossreferencing in condition 3 altered. The Abercrombie licence incorporated two attachments; the first attachment apparently depicted the licensed area and the second attachment identified the location of monitoring bores.
(d) The conclusion that Mr Vasel reached that amending the licences to refer to the category 63 areas would confine the areas within which the applicant could conduct its other prescribed activities implied a particular view about the form of any licence to be issued under the Act and ultimately, whether it was possible to issue a single licence that applied to and discriminated between separate prescribed premises. As I understood Mr Vasel's evidence, he regarded the power to grant and amend licences conferred by s 57 and s 59 of the Act to be limited in ways that were relevant to the applicant's applications. Those limitations were reflected in the considerations identified in pars 71 to 74 of his affidavit - and in the respondent's submissions referred to in the next section of the reasons that the applicant's applications proceeded on a fundamental misconception about the licensing regime created by the Act. Accordingly, the considerations referred to in pars 71 to 74 of Mr Vasel's affidavit raised questions about the proper construction of the Act.
(e) In my view, Mr Vasel's conclusion that the category 63 prescribed premises comprised more than the category 63 areas delineated in the plans submitted by the applicant was a significant issue for the determination of the application for orders absolute.
84 The respondent contended that there was a 'fundamental misconception in the applicant's grounds concerning the nature of its licences and the way in which the [Act] deals with the licensing of premises used for more than one prescribed purpose' (respondent's outline of submissions, par 3). That 'misconception' was described in the following terms by the respondent (pars 8 and 9):
The fact that more than one prescribed activity occurs on premises, so that the premises are 'prescribed premises' for more than one reason and under more than one item of Schedule 1 to the [Regulations], does not require the occupier of those premises to hold more than one licence. Once the status of an area as 'prescribed premises' is established, there is a single obligation under s 56 of [the Act] for an occupier not to cause an emission on or from those premises unless the occupier holds a licence in respect of those premises and complies with the licence conditions. Section 56 only requires the occupier of premises to hold one licence in respect of the premises, not a separate licence for each activity conducted on the premises.
The applicant holds a single licence for the Abercrombie Licence Area, which identifies 3 categories of prescribed premises. It does not hold 3 separate licences for that area. Further, it does not seem to be in dispute that one or more prescribed activities involving emissions occur over the whole of the Abercrombie Licence Area. The applicant, as an occupier of the area, requires a licence in respect of the whole of that area if it is to avoid committing an offence against s 56(1) of [the Act].
(a) The proposed amendment to the licence would create an ambiguity as no amendment was proposed to the text of the description of the licensed area. It would not be clear whether the licensed area was the whole of the centre or merely the area shaded red in the plans submitted by the applicant. Further, the substitution of the plans would have no effect if the licensed area remained the whole of each centre as the red shaded area was simply a subset of the licensed area to which the conditions attached to the licence did not relate (par 16).
(b) The proposed amendments would fail to achieve their purpose if the plans were intended to identify the areas within each centre where activities occurred that caused the premises to be prescribed under category 63 of sch 1 to the Regulations. The relevant category 63 activity was not merely the burial of waste but also the acceptance of that waste for burial. The acceptance of category 63 landfill involved areas within the centres other than the void specially designated for depositing the waste to landfill (par 18).
(c) The ability of the applicant to lawfully conduct its operations would be significantly impeded by the proposed amendments even if its argument that a licence may operate in respect of different areas for different prescribed activities was accepted:
(i) Granting certiorari in respect of the Abercrombie licence would recognise that the licence had been invalid and of no legal effect at the time that it was issued. As a result, the operations of the applicant since the expiry of the previous licence would constitute an offence under the Act.
(ii) The applicant used land located outside the red shaded areas in each plan for the acceptance of inert waste for burial within those areas. The applicant had not indicated any intention to cease accepting that material but it would not be able to lawfully continue to do so if the proposed amendments were made. Similarly, the applicant disposed of waste material other than 'clean fill' in areas outside the red shaded areas depicted in its plans. The applicant had not indicated any intention to cease doing so but the continued disposal of that material in those areas would constitute an offence under the Act (par 19).
86 The applicant confirmed in its submissions on the return of the show cause order that the purpose of the proposed amendments to its licences was to define new areas to be used solely to deposit category 63 landfill - category 63 prescribed premises that would constitute the licensed areas for 'category 63 licences' to be issued by the respondent - and that it did not seek to change the boundaries to the category 61A and category 67A prescribed premises (applicant's submissions in support of application for orders absolute, par 12). Consequently, the applicant sought a licence that recognised that defined areas within the Abercrombie and Wanneroo centres constituted separate prescribed premises as a result of using those areas for different prescribed purposes.
(a) The respondent had raised for the first time that the applicant was depositing category 63 landfill outside the category 63 areas. The applicant denied that assertion but contended that the matter was, in any event, irrelevant (submissions in support of application for orders absolute, par 10):
The [respondent] cannot, unilaterally and contrary to [the applicant's] application, issue a licence for a larger area than sought by [the applicant]. If [the applicant] deposits category 63 waste on any area not within the reduced area [the category 63 area], the remedy would be to prosecute [the applicant] for doing so.
(b) Conditions could be imposed on the licences that concerned the category 63 activities but required the applicant to take some measure on or in areas of the centres outside the category 63 areas. For example, a condition could be imposed on the licence requiring the applicant to take steps to suppress dust from the movement of vehicles carrying category 63 landfill across the centres to the category 63 areas (par 17).
88 The balance of the applicant's submissions on the return of the show cause order emphasised what it apparently regarded as the primary question to be determined on its application: whether the respondent had the power to grant a licence or an amendment to a licence on terms different to that sought by the applicant. The gist of the applicant's position was expressed in the submission that, 'the notion that the plan could not be adopted with respect to category 63, because the [Department] considered that [the applicant] "needed" a broader scope, in terms of area, for its category 63 licensed premises, is a repetition of the approach referred to above, which is to the effect that the [Department] has authority to insist that [the applicant] accept a licence broader in scope than that for which [the applicant] has applied' (par 20).
89 The applicant's submissions also identified matters that are referred to later in the reasons as being concerned with the form of the licence and which, to some extent, have already been identified; that is, that some of the considerations that Mr Vasel took into account in making his decisions could have been addressed by amendments to the wording of the licences and/or the plans submitted by the applicant.
90 It was held in Eclipse Resources that there was an arguable case that the respondent's decisions to refuse to amend the licences in the manner sought by the applicant were susceptible to judicial review [66]. The respondent did not contend to the contrary on the return of the show cause order. Neither party suggested that the appeal provisions relating to licences in s 102 of the Act should be interpreted as implying that the respondent's decisions were not amenable to judicial review. I accept that the decisions could be reviewed for the reasons given in Eclipse Resources at [60] - [65].
91 The respondent did, however, contend that a writ of mandamus could not issue in the terms sought by the applicant having regard to the nature of the discretions conferred by the Act to accept or refuse an application to amend a licence. It is not necessary to further consider that contention in light of the findings that have been made. I would merely note that I accept the submission made by the respondent that, had the applicant established a cause for a writ of certiorari to issue, the most that the court could have ordered by a writ of mandamus was for the respondent to exercise the discretions conferred by the Act according to law.
92 In my view, some of the matters that Mr Vasel stated that he took into account in refusing to grant or amend the licences according to the applicant's applications concerned the form of the licences rather than any limitation on the powers conferred by s 57 or s 59 of the Act. Most of those matters were identified earlier in preliminary comments on Mr Vasel's reasons. I note that, in addition to those matters, any ambiguity about the licensed areas created by the form of the plans submitted by the applicant could have been readily cured by amending the wording of the licences and/or the plans.
93 Arguably, it would not have been reasonable for Mr Vasel to have made his decisions solely by reference to matters that only concerned the form of the licence. However, it is not necessary to further consider that question having regard to the reasons that follow.
94 Mr Vasel stated that an issue sometimes arose about whether an applicant should be granted separate licences for different prescribed premises where it was proposed to use a single site for more than one prescribed purpose (Mr Vasel's affidavit, par 20). It was not entirely clear whether he had in mind a factual distinction reflecting how the applicant actually proposed to conduct the multiple prescribed activities - that is, that in some instances a single licence was appropriate as the prescribed activities were conducted as a integrated operation across the whole of the site. In any event, the respondent confirmed at the hearing of the show cause order that he considered that it was possible under s 56 of the Act to issue separate licences in respect of different prescribed premises located within a single site (ts 56). It is difficult to see why a single licence that distinguished between different prescribed premises within a site could not be granted if the same result could be achieved lawfully by issuing multiple licences in relation to the site. The distinction appeared to be one of form rather than substance. The respondent accepted that point although, I acknowledge with some hesitation (see at ts 40).
95 The Act and the Regulations do not specify that the respondent is to issue a licence in any particular form. In my view, 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. I do not consider that the Act requires such a distinction to be drawn.
96 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.
97 Four points arise from defining the substantive issue to be determined on the applicant's licence applications in that way.
98 The first point concerns the respondent's powers under s 57 and s 59. Determining what constitutes prescribed premises is not merely an administrative matter; it is the foundation for the regulatory regime created by div 3. Section 56 of the Act is concerned with emissions 'from the prescribed premises'; an offence will not be committed if the occupier holds a licence 'in respect of the prescribed premises' and the emissions are caused or permitted in accordance with the conditions imposed by the licence. Consequently, the power conferred on the respondent by s 57 is to grant a licence in respect of prescribed premises. In my view, that also defines the ambit of the respondent's power to impose conditions in a licence to regulate emissions (and see s 62A of the Act which is directed to things that the 'occupier of premises to which a ... licence relates' can be required to do).
99 The applicant submitted that 'it it is the case that a wide range of conditions could lawfully be imposed upon [the applicant] with respect to the conduct of its activities pursuant to the category 63 licences, which conditions need not have anything to do with the area of land which is the prescribed premise itself, and as depicted in the category 63 diagrams' (applicant's submissions in support of application for orders absolute, par 17). However, in my view, the respondent could not impose conditions in a licence relating to prescribed premises that required the occupier to take measures to control emissions occurring outside the premises even if the emissions were caused or permitted by activities were associated in some way with the use of the prescribed premises for their prescribed purpose. The purpose of the licence and the conditions is to create an exception to the offence created by s 56 of the Act for causing or permitting emissions from prescribed premises and not from elsewhere. At most, the respondent could impose conditions that required the respondent to take some measure outside the prescribed premises that would regulate emissions that was caused or permitted from the premises. To take the example given by the applicant, the respondent could not impose a licence condition requiring the occupier of prescribed premises to take measures to suppress dust caused by trucks travelling outside the premises even though the trucks were transporting material to and from the premises. The dust would not be emission from the prescribed premises.
100 Similarly, 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, the prescribed premises so as to be able to impose conditions in the licence that regulated emissions caused or permitted by activities occurring on land that was actually outside the premises. Mr Vasel stated that generally he took into account the area required for implementing environmental protection measures in determining the boundaries for prescribed premises. It must be emphasised, however, that the Act and the Regulations require the respondent to determine what constitutes the premises that are used for the purposes prescribed in sch 1 and not the area of land that might be considered desirable for regulating emissions associated in some way with the activity conducted on the premises.
101 Second, Mr Vasel and the respondent in his submissions placed weight on the fact that the applicant had not applied for multiple licences but only to amend its existing licence for each centre. However, it was apparent by the time that Mr Vasel made his decisions that the applicant intended to, in effect, carve out a separate licence for the category 63 areas while retaining a licence over the whole of each centre for the other prescribed activities. It would be arguable that the respondent had made an error that was susceptible to judicial review if the category 63 areas defined by the applicant constituted prescribed premises within the meaning of sch 1 to the Regulations and for the purpose of s 57 and s 59 of the Act but he refused to issue a licence or amend the licence separately for those premises merely because, as a matter of form, the applicant had not applied for multiple licences.
102 Third, the issue of whether the category 63 areas constituted prescribed premises involved a question of construction relating to the description of category 63 prescribed premises provided by sch 1 and questions of fact about the areas identified by the applicant. The question of construction concerned the meaning to be attributed to the expression 'premises on which waste is accepted for burial'. Did that expression describe as the prescribed premises the void in which category 63 landfill was buried as the applicant assumed or did it describe premises that comprised the void and other parts of the centre that were used for activities associated with the acceptance and burial of the landfill as the respondent contended? There were several questions of fact that arose; for example, what parts of each centre were used for activities associated with the burial of the category 63 landfill if the respondent's interpretation of sch 1 was correct and did the applicant dispose of category 63 landfill outside the category 63 areas? The respondent also contended that the prescribed premises comprised the whole of the centres as the applicant conducted a single, integrated operation at each centre so that it was not possible to separately identify category 63 prescribed premises from the category 62A and category 67A premises.
103 Fourth, in my view, the Levy Act and the Levy Regulations form part of the context in which the respondent exercises the discretion to grant and amend licences. The Levy Regulations apparently contemplate that category 63 prescribed premises can be indentified with some precision and separately to other prescribed premises. They reinforce that the respondent is required to determine what, in fact, constitutes the prescribed premises by reference to the purpose for which they are used.
104 The applicant contended 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 applications for a licence or for an amendment to a licence. In this instance, the respondent had 'unilaterally' issued a fresh licence for the Abercrombie centre that did not incorporate the amendment relating to the category 63 area and had amended the Wanneroo licence to incorporate other amendments sought by the applicant but not the category 63 amendment. The respondent did not have the power to, in effect, vary the application and grant or amend a licence according to the variation (applicant's submissions, pars 5 to 7). The source of the respondent's statutory power was the application. Accordingly, the respondent had exceeded the powers conferred by s 57 and s 59 as he had gone beyond the applications in issuing new or amended licences.
(a) It was a question of statutory construction whether a decision maker had the power to grant a licence or approval that differed from an application for the licence or approval. Plainly, that is correct.
(b) Section 57(3)(a) of the Act did not refer to granting or refusing 'the application'. Rather, it enabled the respondent to grant 'a licence' or to refuse to grant 'the licence'.
(c) There were textual indications in other sections of the Act that the concept of 'premises' for the purpose of a licence was not the 'premises' necessarily identified in an application for a licence or an amendment to a licence.
(d) Section 59 empowered the respondent on his or her initiative to amend a licence, including by redescribing the boundaries or area of the premises to which the licence applied. There would be no utility in construing s 57 as prohibiting the respondent from granting a licence in respect of a different area to that which had been applied for by the applicant if the respondent could amend the boundaries or area of the premises to which the licence applied on his or her own initiative immediately following the grant of the licence.
(e) The applicant's interpretation would limit the ability of the respondent to deal flexibly with an application for a licence in circumstances where a refusal to grant a licence might expose the applicant to the commission of a criminal offence. So, for example, on the applicant's interpretation the respondent could only refuse to grant the application entirely or grant a licence for the area specified in the application where the applicant for a licence had failed to include all areas proposed to be used for its prescribed activity or activities. That would place the applicant in a position where it might commit an offence by conducting its prescribed activities outside of the area delineated in the application.
106 The applicant's reply to the last of those submissions reflected what was noted earlier in the reasons about the tenor of its response to the respondent's arguments generally: 'the [respondent] cannot, unilaterally and contrary to [the applicant's] application, issue a licence for a larger area than sought by [the applicant]. If [the applicant] deposits category 63 waste on any area not within the reduced area, the remedy would be to prosecute [the applicant] for doing so' (submissions in support of application for orders absolute, par 10).
107 The respondent in his submissions drew the court's attention to the decision of Pearlman J in Carr v Minister for Land and Water Conservation [2000] NSWLEC 89; 109 LGERA 175. In that case, the applicant applied for a development consent to clear native vegetation. The Minister granted the consent but on terms that were significantly different to those contemplated by the application. Among other things, the areas identified in the application were different to those in respect of which the consent was granted; the approved areas were less than the areas for which the applicant had sought consent and some of the approved areas formed parts of the site that the applicant did not propose to clear (see at [42]). There were other differences between the application and the consent granted that were characterised by Pearlman J as being significant [44] [47]. She found that it was not open to the Minister to grant the development consent in the form that he had adopted as a consequence of those differences.
108 Section 80(1) of the Environmental Planning and Assessment Act 1979 (NSW) provided that a consent authority was to determine a development application by granting or refusing consent to the application. Pearlman J stated [49]:
The reference in subclauses (a) and (b) [of s 80(1)] to 'the application' must be construed, in my opinion, as requiring a consent authority to exercise its powers under s 80(1) only in respect of the particular development application which was lodged. An applicant may amend or vary a development application in the course of its assessment by the consent authority (cl 48A of the Environmental Planning and Assessment Regulations 1994 (NSW) expressly allows for such a possibility) but there is no power under the EPA Act or that Regulation for the consent authority of its own motion to make amendments or variations to a development application. What must be determined by the consent authority is the development application as lodged or as subsequently amended or varied by the applicant. The consent authority is not empowered to grant consent to a development which is significantly different from the development which was sought because, as is self evident, that would not amount to a grant of consent to 'the development application'.
109 Her Honour recognised that the variation between an application for a development consent and the consent might be sufficiently minor that the consent was, in substance, a consent to the application: and see Mison v Randwick City Council (1991) 23 NSWLR 734. Whether a particular consent was significantly different to the application for consent was a matter of fact and degree [56].
110 The respondent sought to distinguish Carr and similar cases by reference to the terms of s 57(3). As previously noted, the section does not expressly require the respondent to grant or refuse the application for a licence. Rather, it refers to the grant or refusal of a licence.
111 I note also that s 80(1) of the New South Wales Act requires a consent authority to 'determine' an application for a development consent (the provision considered by the New South Wales Court of Appeal in Mison was in similar terms). Accordingly, it is 'the application' that is determined by granting or refusing consent. In the context of s 80(1), the word 'determine' appears to connote 'decide' so that a consent authority could not said to have 'determined' an application by purporting to grant the application on conditions that altered the substance of the subject matter of the application. Further, the nature of a development consent is such that it is to be expected that the consent authority could not impose on the applicant an obligation to undertake some other development that was, in substance, different to that which had been proposed.
112 I accept that the difference in wording between s 80(1) of the New South Wales legislation and s 57 of the Act is significant and deliberate. I consider that the difference reflects the subject matter of pt V div 3 of the Act and the licensing regime that the division creates.
113 The respondent did, in fact, determine the application to amend the Wanneroo licence in the way that the applicant contends that he ought to have done: he accepted some of the amendments sought by the applicant and refused other amendments, including the amendment proposed in relation to the category 63 areas. 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 (s 59(1)(c)). The application was to amend an existing licence that does not expire until 2014. The respondent's refusal to amend the licence merely leaves the licence in the form in which it was issued.
114 In any event, the respondent did not exceed his powers under s 59 in determining the applicant's application to amend the Wanneroo licence for the reasons that follow relating to the application to renew the Abercrombie licence.
115 There are several matters of context that, in my view, support the respondent's contention regarding the width of the power conferred by s 57 (and s 59):
(a) An occupier of prescribed premises is required to make an application for a licence if it is to avoid committing an offence under s 56. However, it is not required by Act or the Regulations to define or describe the area occupied by the prescribed premises. Rather, the respondent may determine the form and manner of any application for a licence (or to amend a licence). Further, the applicant is required to support its application with such plans, specifications and other documents and information as the respondent may require (s 59B(1) imposes a similar obligation for applications to amend a licence).
(b) Sections 57(2), (2a) and (3) provide a process by which the respondent receives comments from interested or affected persons about the application for a licence. The effect of the various provisions of s 57 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, the conditions that should be applied.
(c) What constitutes premises used for a particular prescribed purpose under sch 1 of the Regulations and the boundaries or area of those premises are matters of fact. The definitions, concepts and procedures contained in the Definitions that are used to identify different landfill classes and the corresponding prescribed premises categories indicate that determining the category of prescribed premises and the area constituting the premises may involve the application of complex concepts and judgment (even the definition of 'clean fill' involves matters of judgment: whether the material concerned will have no harmful effect on the environment and what is required for 'validation'). In my view, 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 in any licence that is granted.
(d) That view is confirmed by the provisions of s 59(1)(c) of the Act. The power to amend a licence conferred on the respondent by that section indicates that the boundaries or area of prescribed premises is a matter that may be ultimately determined by the respondent. I consider that is so whether the occasion for making the determination is on an application for a licence under s 57 or an application to amend a licence under s 59 or on a proposal to amend the licence. It would not have been intended that the respondent could only grant or refuse an application under s 59 by a licence holder to amend the boundaries of an area of the licensed premises when he or she can amend the boundaries or area on their initiative. Similarly, I do not consider that it was intended that the respondent would be confined to granting or refusing an application for a licence according to however the applicant chose to delineate the area of the prescribed premises given the power to amend under s 59.
(e) The premises identified in sch 1 of the Regulations are used for commercial purposes. In many instances, the premises will have been developed specifically for that purpose and will involve a complex commercial operation. On the application's interpretation of s 57, the respondent has no alternative but to refuse an application for a licence if she or he disagree with the applicant over a matter such as the area comprising the premises. It would be impossible for the applicant to continue to use the premises for its commercial purpose without a licence given the width of the definition of emission in the Act unless the applicant was prepared to commit offences. I agree with the respondent that it must have intended that the respondent would have the flexibility to define the boundaries or area of prescribed premises to be licensed in determining an application under s 57 having regard to the nature of the prescribed purposes referred to in sch 1 and the consequences of refusing a licence.
116 In my view, the applicant's submissions conflated the occasion for the respondent to make a decision under s 57 and s 59 with the extent of the powers conferred by those sections. It is a question of fact as to what constitutes the premises the subject of an application for a licence and the licence. The answer to that question is not determined by the applicant in or by its application for a licence or an amendment to a licence.
117 It follows that, in my view, the respondent had the power to:
(a) grant the renewed Abercrombie licence for an area that covered the entire centre for each nominated prescribed premises category, including the category 63 prescribed premises;
(b) refuse to amend the Wanneroo licence to separately provide that the licensed area for the category 63 prescribed premises should be confined to the category 63 area as defined by the applicant in its application to amend the licence.
118 It remains necessary to consider whether the decisions ought to be quashed on the other grounds of review raised by the applicant notwithstanding that they were made within the power conferred on the respondent by the Act. That question, however, raises issues concerning the differences between the grounds of review stated in the show cause order and the reasons given by Mr Vasel for his decisions.
119 The respondent did not confine its submissions strictly to the matters raised by the show cause order having regard to the evidence given by Mr Vasel. The applicant made submissions that responded to the respondent's submissions and evidence. Accordingly, I propose to consider the question of whether there were grounds for quashing the decisions without taking an overly pedantic approach to the show cause order. However, it is necessary to keep in mind the limits imposed by O 56 r 6 Rules of the Supreme Court 1971 (WA) and the requirement for an amendment to the order if relief is to be sought and granted on a ground that was not raised by the order.
120 As has been noted, it was apparent that the applicant and the respondent construed the description of category 63 prescribed premises in sch 1 of the Regulations differently. It was implicit in the applicant's application that it regarded the description 'premises on which waste ...is accepted for burial' as referring to the void into which waste is received as landfill. The respondent, on the other hand, interpreted the description as referring to not just the void but other areas where the waste was received, sorted, transported and stored.
121 The difference between the parties on the interpretation of the description of category 63 prescribed premises was not a matter that was identified in the hearing for a show cause order. It appears from the evidence that the possibility that the respondent regarded the definition of category 63 prescribed premises appearing in sch 1 to the Regulations as describing more than just the void to be filled with category 63 waste was not expressly raised during the period that the applicant's licence applications were under consideration. I accept that this would explain why the meaning and effect of the definition was not raised in the application for a show cause order.
122 However, the difference between the parties on the effect of the description defining category 63 prescribed premises in sch 1 was apparent from the evidence given by Mr Vasel (see par 76 of Mr Vasel's affidavit; see also par 31 of the respondent's submissions). Nevertheless, neither party expressly addressed the difference in their submissions. At most, the respondent submitted that what constituted 'premises' in any particular case was a question of fact to be determined in the light of all of the circumstances (respondent's submissions, par 32). However, he merely assumed that the expression 'premises on which waste is accepted for burial' described not just the void into which the waste was buried as fill but also, at least, those parts of each centre that were used for the 'initial acceptance' of the waste for burial, to transport the waste within the centres, to store the waste prior to burial and to store equipment used in spreading and burying the waste.
123 In Federal Commissioner of Taxation v Reynolds Australia Alumina Ltd (1987) 18 FCR 29; 77 ALR 543 Burchett J noted that the word 'premises' had a long history of use as a wide and general word referring to land or land and buildings. His Honour continued (563):
The development in language ... is explained by Lord Goddard CJ in Gardiner v Sevenoaks Rural District Council [1950] 2 All ER 84 at 85, where he said:
'Premises' is, no doubt, a word which is capable of many meanings. How it originally became applied to property is, I think, generally known. It was from the habit of conveyancers when they were drawing deeds of conveyance referring to property and speaking of 'parcels'. They set out the parcels in the early part of the deed, and later they would refer to 'the said premises', meaning strictly that which had gone before, and gradually by common acceptance 'premises' became applied, as it generally is now, to houses, land, shops, or whatever it may be, so that the word has come to mean generally real property of one sort or another. There is no doubt that from time to time the word 'premises' has been given different meanings, either extended or more restricted.
124 Accordingly, two questions are entailed in ascertaining what might constitute category 63 prescribed premises. A question of construction concerning whether the word 'premises' when used in the description was intended to carry a wide or more restricted meaning and a question as to what were, in fact, the prescribed premises. The second question is, of course, to be determined by applying the proper construction of the word 'premises' to the particular circumstances under consideration.
125 The term 'premises' when used in sch 1 to the Regulations to describe category 63 prescribed premises draws meaning from the remainder of the description - premises on which 'waste is accepted for burial' - and from what is described by the category - a Class 1 inert landfill 'site'. In my view, the expression 'premises on which waste is accepted for burial' describes more than just the void into which the waste is buried as landfill. I recognise that it can be said that waste is accepted into a void for burial. However, I do not consider that this was the intended meaning of the expression 'accepted for burial' when used to describe category 63 prescribed premises. The expression is also used in the description of categories 64, 65 and 66 prescribed premises and in my view, the expression was intended to refer to premises on which waste satisfying the criteria for each of the classes of landfill referred to in those categories was accepted for disposal by burial as landfill. The premises described in each of those categories comprise the area of land that is used for that activity. That interpretation is also more consistent with describing each category as a 'site'.
126 The requirement to determine what constitutes the prescribed premises according to the purpose identified in the descriptions for the various categories in sch 1 has already been highlighted. However, the subject matter and purpose of a licence favour the view that the term 'premises' was to be given a wide meaning. That is especially as the primary means of regulating emissions from prescribed premises is by conditions imposed by the respondent on the occupier through a licence.
127 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.
128 Neither party made any submission on the limits on judicial review for unreasonableness or for what Aronson M, Dyer B and Groves M Judicial Review of Administration Action (4th ed, 2009) have termed 'serious irrationality or illogicality' (at [4.410], discussing the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59). The matter was briefly discussed in Eclipse. The applicant's submissions referred to unreasonableness rather than irrationality and merely adopted the conventional concept of Wednesbury unreasonableness. The respondent's submissions referred in passing to the judgment of Crennan and Bell JJ in Minister for Immigration and Citzenship v SZMDS [2010] HCA 16; 240 CLR 611, 645 - 648 on the concept of irrationality. In my view, it is not necessary to further consider the issues mentioned in Eclipse given the applicant's submissions on this ground.
(a) the decisions were neither unreasonable nor irrational having regard to the evidence given by Mr Vasel: 'the reasons for the delegate's decisions could certainly not be said to be so unreasonable that no reasonable authority could ever have come to them or such that no rational or logical decision maker could have arrived at them on the same evidence' (respondent's outline of submissions, par 34);
(b) a decision will not be unreasonable in the Wednesbury sense or irrational in the sense discussed in SZMDS merely because the Court strongly disagrees with the decision maker's process of reasoning on an issue of fact that was otherwise open in the circumstances.
130 The applicant made a number of observations regarding the reasons for the decisions given by Mr Vasel (the effect of those observations was summarised earlier in the reasons) and submitted that (applicant's submissions in support of application for orders absolute, par 23):
The new Abercrombie Licence pertained to an area of land in respect of which no licence was sought. Granting a licence to a person who did not seek and did not want a licence over a particular area is plainly unreasonable.
131 The same submission was made in relation to the Wanneroo licence (par 32).
132 As will be apparent, the applicant's submissions on unreasonableness reflected its primary contention that the respondent was bound to either accept or refuse an application for a licence or an application to amend a licence according to the terms proposed by the applicant. The notion that it was unreasonable to grant a licence or to amend a licence for an area that was not the subject of the application falls away once it is accepted that the respondent had the power to determine the area of the prescribed premises from which emissions might be caused or permitted and for which a licence was required if an offence was not to be committed.
133 It has been noted that aspects of Mr Vasel's reasons for refusing the applicant's applications concerning the category 63 areas related to what I have characterised as matters of form. However, Mr Vasel also considered the following matters in making his decisions:
(a) The information provided by Ms Rosa, Ms Fox and Mr Donis indicated that inert material that was not clean fill was being dumped and buried outside the category 63 areas. Mr Vasel considered that the information, including the photographs taken of the centres, showed 'large quantities' of building rubble that had been deposited outside the category 63 areas designated by the applicant. That material was not 'clean fill' but category 63 waste. Further, he was not satisfied that with the protocol submitted by the applicant for validating material to satisfy the second limb of the definition of 'clean fill'. Those were matters that were relevant to determining what areas within the centres were, in fact, used for accepting category 63 waste for burial even on a narrow interpretation of the description of category 63 prescribed premises given in sch 1 to the Regulations.
(b) There were areas outside the category 63 areas that were used for the applicant's category 63 activities. I consider that he was entitled to take those areas into account in determining what constituted the category 63 prescribed premises for the reasons that have been given.
(c) The applicant conducted a single, integrated operation at each site. That is a conclusion about of a matter of fact: see FCT v Reynolds Australia Alumina, Beaumont J (556). The Full Federal Court in FCT v Reynolds Australia Alumina held that where a person carried on a complex of activities at a number of different, but adjacent locations, it was appropriate to classify those locations together as a single set of premises. By analogy, an area of land may constitute a single set of premises for the purpose of a licence issued under s 57 of the Act where the occupier uses the land for various prescribed purposes as part of a single, integrated operation.
134 I accept the respondent's submission that the decisions were not unreasonable in the Wednesbury sense or irrational having regard to those considerations. That conclusion is reinforced by other matters:
(a) The applicant did not contend that the enquiries made by the respondent into the licence applications were unreasonable. In my view, the evidence of Ms Rosa, Mr Fox and Mr Vasel established that the decisions were made following a lengthy process of review that reasonably enquired into matters that were relevant to the applicant's applications.
(b) The applicant did not dispute the factual conclusions reached by Mr Vasel or the information and material on which he reached those conclusions. It did not contest the evidence given by Ms Rosa, Ms Fox and Mr Donis regarding what they observed during their inspections of the centres nor did it challenge Mr Vasel's view that the protocol that it submitted did not satisfactorily establish a procedure for validating waste as clean fill according to the Assessment Document.
135 The applicant submitted that the respondent took into account the following considerations that were irrelevant (applicant's submissions on orders absolute, pars 25 and 35):
(a) that to deposit material comprising Class 1 inert waste in an amount of 500 tonnes or more per year on premises that were not licensed as category 63 prescribed premises may involve the commission of an offence under s 56;
(b) that 'unless the diagrams depicting the [category 63] areas were incorporated into each licence the diagrams would have no substantive role'.
136 Neither of those matters was referred to in the grounds of the show cause order. However, there was a more fundamental difficulty with relying on those matters as grounds for judicial review.
137 The relevancy grounds for judicial review only apply where the decision maker was bound to take the omitted factor (the relevant consideration) into account or forbidden to consider the included factor (the irrelevant consideration): see Judicial Review of Administrative Action [5.10]. That involves a question of statutory construction.
138 The Act does not identify any particular factor that the respondent must take into account or is forbidden from considering when determining whether to grant or refuse a licence or to amend a licence. In my view, it cannot be said that the respondent was forbidden by necessary implication from considering the matters identified by the applicant even if it could be said that those matters were irrelevant to the substance of the decisions to be made.
139 I would add the following brief observations about the matters raised by the applicant. I assume that the first of the matters was directed to the concern expressed by Mr Vasel that the applicant would be exposed to the risk of committing an offence under s 56 of the Act if the application for a licence for the category 63 prescribed premises was refused. It could be said that the fact that the applicant did not commit an offence by continuing to accept for burial category 63 waste was a consequence of granting a licence rather than a consideration to be taken into account in deciding whether to grant the licence. However, to make that distinction does not, in my view, disclose any error by the respondent. Further, I think that Mr Vasel's evidence on this aspect reflected the assumption that he made that the applicant wished to continue accepting category 63 waste for burial even if the respondent refused to license the category 63 areas as separate prescribed premises. That was a reasonable assumption having regard to the nature and extent of the applicant's operations at each centre.
140 The applicant's submissions might be taken to suggest that it did not wish to be licensed to accept category 63 waste for burial unless the licensed area was limited to the category 63 areas. However, I consider that the language employed in the submissions was intended to highlight the applicant's primary contention regarding the extent of the respondent's powers. That is, the submission that 'the [respondent] cannot, unilaterally and contrary to [the applicant's] application, issue a licence for a larger area than sought by [the applicant]' (applicant's submissions in support of application for orders absolute, par 10) was intended to argue that the respondent was, in effect, bound to accept the applicant's delineation of its category 63 prescribed premises rather than to suggest that it did not wish to be granted a licence for a larger area if it was found that the respondent did, on a proper construction of the Act, possess the power to determine the boundaries or area of the prescribed premises. As Mr Vasel noted, there was no suggestion in the applicant's applications or in the information that it provided in response to the Department's requests that the applicant did not wish to continue to accept category 63 waste for burial as part of its business operations if its licences were not amended to confine the category 63 prescribed premises to the category 63 areas. The applicant did not suggest that this was its position at the hearing of the show cause order once it had the benefit of the respondent's evidence and submissions. However, it would, of course, be open to the applicant to relinquish that part of its licence that concerned the category 63 prescribed premises by requesting an amendment to its licence if it did not wish to accept category 63 waste for burial except on condition that the licensed area corresponded with the category 63 areas.
141 It has been accepted that Mr Vasel's view of the use of the plans submitted by the applicant as a means of effecting the amendments to the licences that it sought concerned a matter of form. It may also be accepted that it was, strictly, a consideration that was irrelevant to the substance of the decisions required to be made by the respondent. However, it was only one of a number of matters considered by Mr Vasel; other matters that he considered were, in my view, relevant to the substance of the decisions that he was required to make. The applicant's submission highlights why the relevancy grounds for judicial review are concerned with considerations that a decision maker is bound to consider or forbidden from considering on a proper construction of the statute conferring the power to decide.
142 The applicant contended that it had been denied natural justice in relation to the renewal of the Abercrombie licence as it had not been given notice of the respondent's intention to grant the licence over the entire area occupied by the Abercrombie centre. It was submitted that (applicant's submissions for orders absolute, par 31):
[The applicant] was simply told of the [respondent's] decision and the reasons for the decision. No advance warning was given. No opportunity was accorded to Eclipse to comment on the reasons why the [respondent] intended to grant a licence that applied to the entire Abercrombie Road site. There was a complete failure of procedural fairness.
143 The applicant made no submission that it was denied natural justice in relation to the decision to refuse to amend the Wanneroo licence notwithstanding that the grounds of the show cause order referred to a denial of natural justice in relation to that decision.
(a) The respondent had not failed to accord natural justice as his decisions did not adversely affect the applicant's rights or interests. Rather, the decisions avoided a number of adverse consequences that would have resulted if the amendments had been made - the applicant would not have been able to accept category 63 waste for burial as part of its business operations without committing an offence under the Act. The respondent also submitted that granting certiorari would quash the decision to issue the Abercrombie licence and so expose the applicant to the risk of being found to have committed offences from the time that the licence was granted. However, that submission appeared to confuse the effect of granting relief in these proceedings with the effect that the decision, in itself, might have had on the interests of the applicant at the time that it was made.
(b) The relevant statutory context was that the decisions were made by the respondent as the chief executive officer of the Department or by his or her delegates and not by a court.
(c) The respondent was under no express duty to give the applicant notice of the proposed terms of the Abercrombie licence prior to its grant (or notice of the proposed part refusal of the application to amend the Wanneroo licence).
(d) The applicant was given an opportunity to put information and make submissions in support of its application. Mr Vasel's decisions were based on information provided by the applicant and not on a consideration of any adverse material from other sources. He had regard to the legal and practical consequences of the amendments proposed by the applicant. The relevance of the consequences of the amendments and the operation of the licensing provisions of the Act were apparent from their nature and the terms of the Act.
(e) In any event, the applicant was given notice of Mr Vasel's provisional conclusions.
145 The respondent's submissions that the decisions did not adversely affect the applicant's interests reflected his view that the applicant would have been exposed to the risk of committing offences under s 56 of the Act if he had merely refused to issue a new licence for the Abercrombie centre or he had only issued a licence for the applicant's category 61A and 67A prescribed premises. As has been explained, he assumed that the applicant wished to continue accepting category 63 waste for burial as part of its business operations even if the category 63 prescribed premises were not confined to the category 63 areas. Although I consider that it was reasonable for Mr Vasel to have made that assumption, the decisions nevertheless affected the interests of the applicant because of the levy legislation. The determination of the licence area for the category 63 prescribed premises affected how the levy legislation applied to the applicant. According to Mr Sippe, the respondent's decisions to issue a licence that identified the category 63 prescribed premises as the whole of Abercrombie centre and to not amend the Wanneroo licence in that regard had other adverse consequences. His evidence on those matters was not contested.
146 The respondent contended that the content of any obligation that he to accord natural justice in making decisions under s 57 and s 59 of the Act was as described by the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 592:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
147 The applicant did not challenge that formulation of the duty owed by the respondent. It was recently accepted and applied by Martin CJ in an analogous statutory context in BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221. The Chief Justice observed that, '[g]enerally speaking, a fair opportunity to put relevant evidence and submissions before the decision maker will require that a party likely to be affected by the decision be made aware of the issues which the decision maker considers to be critical to the decision' [109].
(a) The applicant was aware that Mr Vasel and the Department were concerned about the nature of the fill that the applicant was burying in the civil works areas of the Abercrombie and Wanneroo centres. Mr Sippe commented on the Department's concern about that matter in his correspondence about the applications to amend the licences.
(b) The applicant was also aware that the Department's interest in the material being deposited in the civil works areas reflected a concern about whether category 63 waste was being dumped and buried in those areas; for example, that was the purpose of requesting a validation protocol. It would have been apparent to the applicant from the Act that the Department's concern related to determining whether a licence for the category 63 prescribed premises should be confined to the category 63 areas as delineated by the applicant or whether the prescribed premises covered a larger area. It was clear from the evidence that the applicant was, as might be expected, very familiar with the statutory scheme that applied to landfill sites.
(c) The applicant knew that the officers of the Department had inspected each centre following the applications to amend the licences and had taken photographs of the various activities undertaken at the centres. It would have been apparent to the applicant that the Department and Mr Vasel were interested in assessing how the applicant's activities were conducted at the centres as part of the process of determining the applications.
(d) Mr Vasel based his decisions on information provided by the applicant and by officers of the Department. The extent to which the information provided by departmental officers was discussed with representatives of the applicant was not entirely clear from the evidence. However, the information comprised observations made by the officers of the applicant's centres. Generally, representatives of the applicant accompanied Ms Rosa and Ms Fox when they made their inspections. According to Mr Vasel, the fact that the civil works areas contained material that was regarded as category 63 waste was discussed during the meeting on 19 November 2010.
(e) The information requested by the Department included a protocol for validating material as clean fill according to the Assessment Document. There was no evidence that Mr Vasel or any other officer of the Department explained to any representative of the applicant why it was considered that the protocol submitted by the applicant was unsatisfactory. However, I do not consider that the respondent was obliged to seek further submissions from the applicant regarding the protocol to accord natural justice having regard to the nature of the discretions conferred by s 57 and s 59. The applicant knew why the protocol had been sought and that it related to determining the boundaries of the category 63 prescribed premises. Mr Skitmore and Mr Vasel explained that a view had been formed in the telephone discussion with Mr Sippe held in early March 2010 but no further submission was made by the applicant.
(f) I am satisfied that the applicant was aware of the matters that Mr Vasel and the Department regarded as being critical to the applicant's applications. It must have understood that the respondent considered that he had the power to determine the boundaries of the category 63 prescribed premises. It was apparent that the applicant considered that the licence area for the category 63 prescribed premises was to be determined according to how it chose to delineate the premises (for example, it submitted levy returns that only surveyed the category 63 areas until requested to survey the entire area of each centre). I am satisfied that the applicant had ample opportunity to make whatever submissions it considered appropriate on that issue.
149 I accept that the evidence tendered by the respondent disclosed that Mr Vasel did not form an erroneous view regarding the certainty with which the plans submitted by the applicant identified the category 63 areas. As has been explained, Mr Vasel's decision was not concerned with whether the plans sufficiently delineated the areas of the proposed prescribed premises. Rather, his decision was based on his conclusion about what, in fact, constituted the premises.
150 Finally, I accept the respondent's submission that any error that Mr Vasel might have made about the definition and description of the category 63 areas provided by the plans submitted by the applicant would not have been about a jurisdictional fact given the extent of the powers conferred on the respondent by s 57 and s 59 of the Act.
(1991) 23 NSWLR 734
(1987) 18 FCR 29
(1994) 49 FCR 576