Impact of the Fluoridation Act on obligations under the EPA Act
113Reference to the definition of "determining authority" in s 110 of the EPA Act makes apparent that there may be more than one determining authority in respect of any given "activity". As I have indicated at [52], in the present case the Council is the determining authority in carrying out the "activity" while the Director-General is the determining authority whose approval is required to carry out that activity. Given that the carrying out of the activity would be unlawful without the approval of the Director-General (s 6(2) of the Fluoridation Act), logically, the actions of the Director-General under the Fluoridation Act must first be considered. That is so because it is necessary to consider how the two statutes interact when directed to what is essentially the same activity.
114The interaction between the provisions of the Fluoridation Act pertaining to the grant of an approval under s 6 of that Act and the provisions of Pt 5 of the EPA Act has recently been the subject of judicial consideration. In Oshlack v Rous Water [2011] NSWLEC 73; 184 LGERA 365, Biscoe J determined (at [56]) that the approval regime under s 6 of the Fluoridation Act "leaves room ... for the operation of ss 111 and 112 of the EPA Act". His Honour continued:
"The combined effect of both statutes is to permit the authority to add fluorine and to comply with the requirements of ss 111 and 112 before doing so."
115His Honour's decision was made by answering two preliminary questions which were directed, in principle, to the manner in which the relevant provisions of the two statutes were interrelated. In so doing, he was not required to consider the provisions of s 110E of the EPA Act and its impact upon the extent to which the obligations cast by ss 111 and 112 were to be met as between the two determining authorities involved, namely the water supply authority on the one hand and the Director-General on the other. Properly understood, his Honour's decision determines that the process of determining to grant an approval under the Fluoridation Act does not exclude a residual or continuing role under Pt 5 of the EPA Act on the part of the water supply authority. It will be necessary to return to this role in due course.
116Fundamental to the capacity of the Council to fluoridate its water supply is the proscription expressed in s 6(2) of the Fluoridation Act. The approval that I have earlier identified, namely that given by the Director-General on 30 October 2008, as modified by the Chief Dental Officer as her delegate on 29 March 2011, is the approval that then removes the proscription created by the subsection.
117However, a constraint upon the water supply authority remains by dint of s 6(6) of the Fluoridation Act. The constraint imposed by that subsection is that the water supply authority can only fluoridate its water supply conformably with the conditions attached to the Director-General's approval. In the present case, this means that fluoridation could only be undertaken in accordance with the modified conditions expressed in the Chief Dental Officer's instrument of approval given on 29 Mach 2011.
118Importantly, those conditions imposed a number of steps that were to be taken before fluoridation could commence. It was by operation of those conditions that approval of NOW was required for the "plans and specifications of the fluoridation components of the Plant", as well as inspection and operational testing of the fluoridation component by NOW, followed by recommendation from that body to NSW Health. Only after NSW Health approved the use of the fluoridation component was the Council then able to commence fluoridation conformably with an approval under s 6. Notification of approval to commence fluoridation did not occur until 14 October 2011 when, by letter of that date, the Chief Dental Officer authorised the commencement of fluoridation.
119It follows that until receipt of the Chief Dental Officer's letter of 14 October, the approval to permit fluoridation was within the sole control of the Director-General. As both the express provisions of the Fluoridation Act, the Fluoridation Regulation and the Fluoridation Code, together with the conditions of approval required, the control exercised by the Director-General extended to -
(i)determining the concentration of fluorine to be added to the water supply;
(ii)determining the form in which fluorine at the required dose was to be added to the water supply;
(iii)the design of the dosing facility or mechanism;
(iv)the interaction of that facility or mechanism with the flow of water through the Plant; and
(v)the assessment, testing and operation of the dosing facility in conjunction with the Plant by Officers of NOW.
All of these aspects of control, together with the overriding decision to approve fluoridation of the water supply are all aspects of the approval process that must have been informed by the need to address issues of public health. Relevantly, those issues of public health identified by the Applicant to which the Applicant claims the Council failed to address itself as required by ss 111 and 112 and referred to earlier at [63] are issues that must have been directly engaged by the decision to approve fluoridation and to impose the controls or conditions that were imposed upon that process.
120As I have already indicated, the provisions of ss 111 and 112 applied to the exercise of power by the Director-General when determining to grant an approval under s 6 of the Fluoridation Act, including all conditions imposed upon that approval pursuant to s 6(5). Yet the Applicant brings no challenge to the validity of that decision. In the absence of such challenge, it must be assumed that the approval was regularly granted, including the assumption that the Director-General fulfilled the obligation imposed by ss 111 and 112 of the EPA Act when so doing. Having so concluded, it is then necessary to consider the nature or ambit of the residual or continuing obligation imposed upon the Council as the Water Supply Authority under ss 111 and 112 in carrying out "the activity". As I have earlier indicated, that "activity" is accepted as being the construction of the fluoride dosing facility and its operation by adding fluorine to the water supply. That consideration necessitates reference to s 110E of the EPA Act.
121Although I have earlier quoted the section in full, given its significance in the present context, it is appropriate to repeat the relevant provisions of the section as follows:
"110E Exemptions for certain activities
Sections 111 and 112 do not apply to or in respect of the following (despite the terms of those sections):
...
(c) an activity ( or part of an activity) that has been approved, or is to be carried out, by another determining authority after environmental assessment in accordance with this Part."
122Both the text of the section and its context in Pt 5 makes tolerably clear that where two determining authorities are involved in the implementation of a given activity, it is unnecessary for the obligations cast by ss 111 and 112 to be duplicated. Logically, the provisions address circumstances, such as those that occurred here, where the requirements of those sections have been addressed by a determining authority required to give an approval antecedent to the carrying out of the activity. The assessment of matters necessary to be considered by that approving authority are not required to be repeated or duplicated by the determining authority carrying out the activity.
123In the present context, the Council submits that upon the completion of the approval process by the Director-General and notification that fluoridation could commence, it was absolved from the legal obligation to consider the very matters which the Applicant contends it failed to consider in the context of the obligations imposed by ss 111 and 112, being those matters that I have described compendiously as health issues. For its part, the Applicant contests that submission. As I understand the Applicant's submission, essentially it does so on the basis that there is no evidence to indicate that the Director-General, either by herself or her delegate, address themselves to the provisions of Pt 5 of the EPA Act. Further, it points to the closing provisions of s 110E(c), qualifying the operation of the provision by the words "after environmental assessment in accordance with this Part."
124In principle, I accept the Council's submission as being correct. As I have earlier indicated, in the absence of challenge to the validity of the Director-General's approval, I must assume that it was validly granted which carries with it an assumption that all conditions precedent to the grant of approval were observed. Those conditions precedent must necessarily have included observance of the provisions of ss 111 and 112. I do not derive from the provisions of s 110E(c), when read in context with the other provisions of Pt 5 of the EPA Act, a legislative intent that a "determining authority" that is to carry out an activity is required to satisfy itself that the determining authority granting approval has done so validly in that it has complied with the provisions of ss 111 and 112. In the absence of clear statutory language, it would be extraordinary if one authority, having received an approval from another authority was required to satisfy itself that the approval had been lawfully given.
125I have earlier referred to the decision of Biscoe J in Oshlack v Rous Water, determining that the provisions of the Fluoridation Act pertaining to the grant of an approval under s 6 do not operate to exclude the need for the water supply authority, as a determining authority carrying out the process of fluoridation, to comply with ss 111 and 112. However, the provisions of s 110E must determine the extent to which those provisions operate, if at all, upon that activity.
126If the considerations that the Council is required to give to the carrying out of the activity differ from those which must necessarily have been brought to bear upon the approval by the Director-General, then clearly there is work to do for the Pt 5 provisions as they relate to the Council. So much is demonstrated by the example given by Biscoe J in Oshlack (at [35]), where fluoridated water will or is likely to impact upon the receiving environment or eco-systems associated with it. Any impact of that kind would not fall within the purview of considerations required by the Director-General when granting an approval under the Fluoridation Act. But that is not this case.
127The Applicant has identified the impacts that it claims were not addressed as being the human health impacts, whether beneficial or detrimental, by fluoridating the Eurobodalla Water Supply. For reasons already stated, those are the very impacts that must necessarily have been considered when the Director-General determined to grant the approval and imposed conditions, leading to the authorisation to commence fluoridation in October 2011. In that circumstance, s 110E(c) excluded the application of ss 111 and 112 to the carrying out of "the activity", that is, operating the dosing facility so that treated water at the Plant was also fluoridated.
128That conclusion does not change as a consequence of the fact that the "activity" identified by the Applicant also includes the design and installation of the dosing facility. The design, location and operation of that equipment, as a component of the Plant, were the subject of the conditions of approval given by the Director-General. When a component of the dosing facility or equipment was found to be inadequate to control the concentration of fluorine to be added at the Plant, it was required to be modified (Exhibit A3 tab 30). That modification was carried out (Exhibit A3 tabs 34 and 35) prior to final inspection of the facility by officers of NOW who, after testing, made the recommendation to the Department of Health that fluoridation be authorised to commence. Those matters are a demonstration of the extent to which all aspects of the dosing facility fell within the control of the Director-General in exercising the power under s 6 of the Fluoridation Act.
129In drawing the conclusion I have expressed, I do not overlook the fact that the grant of an approval under s 6 is permissive in nature (Oshlack v Rous Water [2013] NSWCA 169; 194 LGERA 39 at [115]). My purpose in referring to the power exercised by the Director-General when determining to grant an approval is to identify the ambit of considerations necessary to be had when exercising that power. An understanding of the ambit of those considerations is necessary in order to give effect to the provisions of s 110E(c) of the EPA Act.
130In summary, I conclude that all matters identified by the Applicant as being those required to be considered for the purpose of ss 111 and 112 of the EPA Act when determining to carry out the "activity" to which the Applicant refers, were matters that fell for consideration by the Director-General when deciding to grant approval under s 6 of the Fluoridation Act. There being no challenge to the validity of that approval, ss 111 and 112 did not apply to the decision by the Council to give effect to the "permission" evidenced by that approval. The requirement to apply those provisions was removed by s 110E(c).
131Against the possibility that I am wrong in reaching this conclusion, there are further matters that must be noticed. Following the 27 May resolution, the Council continued to consider matters relevant to the proposed fluoridation of its water supply. As I have earlier recorded, documents in Exhibits A1 and A5 reveal that correspondence and submissions directed to the topic continued to be received by the Council until after fluoridation commenced in November 2011.
132Furthermore, the topic was before the Council and its staff on a number of occasions. By way of example, at a meeting of the Council on 8 July 2008, a question was asked as to the impact of fluoridated water upon those suffering from kidney disease. As a consequence, a report entitled "The risks of consumption of fluoridated water for people with chronic kidney disease" from Kidney Health Australia was tabled. At the meeting on 23 November 2010, the Council considered a report from its Acting Director, Water and Waste, addressing the need to seek an extension of time to commence fluoridation because of delays in completing the Plant, but also reporting upon the fluoridating agent to be utilised in the dosing facility. Ultimately, the acceptance of the particular fluoridating agent was a component of the approval process under s 6 of the Fluoridation Act.
133A Review of Environmental Factors (the REF) was prepared for the Council by the Department of Commerce. An initial draft of the REF was prepared in March 2008 and a final draft attaching a number of specialist consultant reports was prepared in August of that same year. The REF was prepared to address "the environmental impacts of the proposal to construct and operate a new Water Treatment Plant as part of the Eurobodalla Shire Regional Water Supply Scheme." The August draft took account of the Council's decision to fluoridate its water supply and to do so at the then proposed Plant.
134A report prepared by Mr G Searle, the Council's Group Manager Water and Waste was considered by the Council at its meeting on 21 October 2008. The subject matter of that report was the consideration of a short list of companies who had expressed interest in tendering for construction of the Plant. In the course of that report, Mr Searle wrote:
"An REF has been prepared for the Nth WTP with no significant issues identified."
The minutes of that meeting record only the adoption of recommendations made by Mr Searle in his report. Those recommendations do not address the REF. Nonetheless, it is evidence of the fact that the Council was aware that an REF had been prepared, albeit that the document remained in draft form at that stage.
135Subsequently, the Department of Commerce enquired of the Council as to whether the draft REF it had submitted in August was accepted by the Council. Mr Searle responded on 17 December 2008 by indicating that he did not "have any issues" subject to one query. He then raised a question directed to the flora and fauna assessment contained in the draft REF. In particular, Mr Searle was anxious to have recorded whether there were any endangered ecological communities on or effected by the development of the Plant site. He was subsequently advised by the Department that there were no such communities likely to be effected.
136The REF in final form was submitted to the Council on 9 February 2009. The text of the document includes a description of the existing environment, the consideration of alternatives, scope of proposed works and environmental assessment directed to a range of topics. Annexed to the text and forming part of the REF are a number of consultant reports addressing various topics. Apart from identifying the chemical agent to be used for fluoridation and the location of its storage, the text states:
"Fluoridation of the treated water will be carried out in accordance with the Fluoridation Code, as well as the Fluoridation of Water Supplies Act and Regulation."
137The conclusion expressed in the REF is as follows:
"This REF concludes that by adopting the mitigation measures identified in the assessment it is unlikely that there would be any significant environmental impacts associated with the proposed works and an Environmental Impact Statement is not required."
As that conclusion indicates, mitigation measures are identified in the document but they would appear to be directed generally to the operation of the Plant rather than any specific measures directed to fluoridation.
138On 28 July 2009, the Council considered a further report prepared by Mr Searle, principally addressing tenders received for construction of the Plant. In his report and under the heading "environmental" he stated:
"a formal Environmental Assessment process was followed and an extensive Review of Environmental Factors prepared and accepted for the project. The project has been designed to allow for increased environmental river flows in the future, by utilising the new pipeline from Moruya River to Deep Creek Dam to harvest water during high flow periods, enhancing the downstream river and estuarine environmental value."
The Minutes of that meeting record the Council accepted the recommendation of Mr Searle to accept the tender from Water Infrastructure Group Pty Ltd for design, development and construction of the Plant. The resolution does not refer to Mr Searle's statements concerning environmental assessment and the REF.
139The Applicant submits that the REF was not considered by the Council as a collegiate body. That submission resulted in a debate as to the authority of Mr Searle to consider and "accept" the REF as the Council's delegate, in that capacity fulfilling the obligations imposed upon the Council by ss 111 and 112 of the EPA Act. I will turn to the foundation to that debate shortly. However, the relevance of this debate needs to be addressed. Having regard to the manner in which the Applicant has identified human health issues as being those matters that were required to be but were not considered as the provisions of Pt 5 of the EPA Act required, no issue arises in that context from the REF. It did not purport to address those issues as they related to the "activity" that the Applicant identifies. To the extent that the REF acknowledged fluoridation as part of the intended process, it did so in only the sparse terms to which I have already referred. Otherwise, the Applicant does not seek to challenge the environmental assessment made by the Council when giving its approval and then constructing the Plant as an item of infrastructure.
140The circumstance that the human health issues consequent upon the fluoridation of the water supply were not addressed in the REF is not the end of the matter. I have earlier detailed the extensive material provided to the Council on this issue both before and subsequent to the 27 May resolution. The material available to the Council in observing the requirements of Pt 4 was not confined to the REF.
141The debate as to the authority of Mr Searle to act as the Council's delegate in relation to the REF arises from the absence of direct evidence as to his delegated authority in 2008 and 2009. Certainly, Mr Searle believed that he had the relevant delegation, as is apparent from his email of 17 December 2008 when he responded to the Department of Commerce enquiring as to whether the then draft REF was accepted as being appropriate. His email was headed "Eurobodalla Northern Water Treatment Plant - delegation for acceptance of Draft REF". The evidence before me is that the record of delegation for 2008 and 2009 were kept on an electronic data base which has since been deleted. The deleted database cannot be retrieved.
142Tracey Stewart, an executive assistant to the Director of Planning at the Council, deposes to the fact that in May 2009 she copied delegations from the database for the purpose of a comparative exercise which she was then asked to undertake. The document that she then prepared identified Delegation no. 78 as being in the following terms:
"Determine Review of Environmental Factors for engineering works as to whether or not an Environmental Impact Statement is required."
The nominated delegate to exercise that function is not recorded in the document prepared by Ms Stewart.
143Angus McLean is an engineer who has been employed by the Council for 18 years. He deposed to the fact that between 1996 and May 2005 he was the Council's Manager of Water and Waste. During that period, he exercised the delegated authority given under Delegation 78.
144Although he remained in the employ of the Council, due to ill health, he did not seek promotion to the position of Group Manager of Water and Waste, a position apparently created in about 2005. The latter position was held by Mr Searle from October 2007 until August 2010. During that period Mr McLean held the position of Operations Manager of Water and Sewer at the Council. It is his recollection that during 2008 and 2009, Delegation 78 was held by the holder of the office of Group Manager of Water and Waste, Mr Searle (s 19 of the Interpretation Act 1987 (NSW)).
145This evidence as to the delegated power purportedly exercised by Mr Searle is not entirely satisfactory. However, on the balance of probabilities I accept that he did have and exercise Delegation 78. I reach this conclusion not only based on the evidence of Ms Stewart and Mr McLean, but also from the circumstance that at its meetings on 21 October 2008 and again on 28 July 2009, the Council considered reports from Mr Searle in which he made reference to the REF, recording on the first occasion that "no significant issues" had been identified and on the second occasion that the REF had been prepared and accepted for the project, without any recorded challenge either to his power to do so, or requirement on the part of the Council to review the document. The Council was entitled to rely upon his review for the purpose of fulfilling its obligation under s 111 of the EPA Act (Parks and Playgrounds v Newcastle City Council at [159]). To the extent that the REF was sparse in its consideration of the impacts of fluoridation, the Council was entitled to rely upon input from others in discharging its obligations under Pt 5 in assessing environmental impact. Relevantly, it was entitled to defer, as it was legally obliged to do, to the requirements of the Director-General as reflected in the regime of the Fluoridation Act and the considerations implicit in the determination of those requirements. In Oshlack v Rous Water (No 2), Pepper J at [80] rejected a submission -
"... that it was incumbent upon [the Water Supply Authorities] to, independently from each other or from the Secretary of the Department, undertake a comprehensive de novo investigation into the environmental effects of water fluoridation in order to comply with s 111 of the EPAA."
That, with respect, is consistent with the conclusion that I have expressed.
146In summary, even if my principal conclusion that s 110E(c) rendered inapplicable the provision of ss 111 and 112 in the circumstances earlier described, the evidence establishes that the Council did relevantly engage with the provisions of s 111 when considering the "activity" identified by the Applicant. That it did so is implicit in the decisions it made to implement the Plant project and the fluoride dosing facility, cognisant of the material available to and considered by it as to the affect or likely affect upon the environment of that activity, being material provided both prior to and subsequent to the May 2008 resolution.
147In my opinion, the Applicant has not established that a breach of s 111 has occurred so far as that claimed breach alleges that the Council failed to address, in the manner required by the section, the human health effects that the Applicant identified.