Eurobodalla Fluoride Issues Inc v Eurobodalla Shire Council

Background 8For some years, the Council had investigated the construction and operation of a water treatment plant to address the supply of potable water through its reticulated water supply system which meets current standards for drinking water. That investigation led to a proposal for a new treatment plant to be located adjacent to an existing reservoir, known as Denhams Beach Reservoir, in an area of State Forest approximately two kilometres west of Batemans Bay on the New South Wales South Coast. The proposed plant was identified as the Northern Water Treatment Plant (the Plant). 9Development of the proposal for the Plant was undertaken in conjunction with the former Department of Public Works, later known as the Department of Commerce. In January 2007, the latter Department submitted to the Council both a Water Treatment Options Study and a Concept Design Proposal for the Plant. In February 2007, the Council requested the Department to proceed with the preparation of a concept design for the Plant. No request was made at that time for the design to incorporate a fluoride dosing facility. 10During 2007, representations were made to the Council by or on behalf of different entities, encouraging the Council to fluoridate its water supply. I infer that these representations came to be made as a consequence of knowledge, in the public domain, that the Council had commissioned the concept design for the Plant. It will be necessary to refer later to these representations in more detail. 11The receipt by the Council of these representations had two consequences of present relevance. First, a number of submissions were received from members of the community both supporting and opposing fluoridation of the water supply. Secondly, the Council received a report from its staff upon measures appropriate to undertake a process of community consultation concerning any proposal to fluoridate the water supply. 12On 30 October 2007, the Council resolved to call tenders for the design and construction of the Plant. At that time, no indication was given that a fluoride dosing facility was to be included in the design of the Plant. 13From early January 2008 until April of that year, the Council embarked upon a program of community consultation concerning the fluoridation of its water supply. For that purpose, it appointed an independent community consultation consultant and, as well, engaged with a community consultation focus group, representing different views on the topic of fluoridation. The process of consultation will be discussed in more detail later in these reasons. 14At its meeting held on 20 May 2008, the Council considered a staff report upon the community consultation process directed to the fluoridation of the Council's water supply. The report of the consultant engaged to conduct that process of consultation was annexed to the staff report. At that meeting a public forum was held, in the course of which a number of people addressed the Council upon the topic of fluoridation. Following that forum and after noting receipt of the consultant's report, the Council resolved that it would "not incorporate water supply fluoridation in Eurobodalla." 15In the week immediately following that meeting, two events of present relevance occurred. First, the New South Wales Department of Health provided further documents to the Council identifying the health benefits of fluoridating public water supplies. Copies of this further information were provided to Councillors. Further, two Councillors gave notice of a motion to rescind the resolution passed at the meeting of 20 May, seeking to have that rescission motion determined and the topic of fluoridation reconsidered at a meeting to be held on 27 May. 16At its meeting held on 27 May, the Council was addressed by a large number of people, both supporting and opposing the fluoridation of the water supply. In the result, the resolution of 20 May was rescinded, the community consultation report was again recorded as being "received and noted" and the following resolutions recorded: "2. Given the outcomes of the workshop held prior to the Extraordinary Meeting on 20 May 2008, Council incorporate fluoridation into any future water supply treatment processes in the Shire. 3. Council receive a report in consultation with the state [sic] government as to the methods of providing filtering alternatives for the consumption of fluoridated water to the population." It is convenient to refer to this resolution as "the 27 May Resolution". 17By letter dated 30 May 2008, the Council accepted a proposal from the Department of Commerce for preparation of the design, development and construction specification for the Plant. In accepting the Department's proposal, the letter advising acceptance indicated that the design was to include "provision of fluoridation facilities". 18For present purposes, it is sufficient to record that following the acceptance of the design proposal received from the Department of Commerce, design of the Plant proceeded to the point where the Council was able to call tenders for construction of the Plant. Following receipt of tenders, on 28 July 2009, the Council resolved to accept the tender received from Water Infrastructure Group Pty Ltd. 19In the meantime, the Council advised the Department of Health of its resolution of 27 May 2008. This was done by letter dated 18 June 2008. That letter also advised the Department of the decision to proceed with construction of the Plant. As a consequence, the Department was requested to provide "initial consent" to the fluoridation of the Eurobodalla Water Supply. This request was subsequently confirmed as an application for approval under s 6 of the Fluoridation of Public Water Supplies Act 1957 (NSW) (the Fluoridation Act). 20That application was approved by the Director-General of the Department of Health on 30 October 2008. It was an approval "to add fluorine to the public water supply" under the control of the Council, referred to in the approval as "the Eurobodalla Shire Water Supply". The approval then issued was subject to the following conditions: "1. The Eurobodalla Shire Council may only add fluorine to the Eurobodalla Shire Water Supply in accordance with this approval and any provisions, directions or approvals made or varied from time to time under the Fluoridation of Public Water Supplies Act 1957, the Code of Practice for the Fluoridation of Public Water Supplies made under that Act as in force from time to time, and the Fluoridation of Public Water Supplies Regulation 2007 or any subsequent Regulation made in its place; and 2. The Eurobodalla Shire Council shall maintain the content of fluorine to the Eurobodalla Shire Water Supply at a target concentration level of 1.0mg/L with an overall accuracy of +/-5% and within an operating range of not more than 1.5mg/L and not less than 0.9mg/L and generally in accordance with the relevant provisions of the Code of Practice for the Fluoridation of Public Water Supplies; and 3. The Eurobodalla Shire Council shall have commenced the upward adjustment of fluorine in the Eurobodalla Shire Water Supply by no later than 31 December 2010, unless otherwise approved by the Chief Dental Officer of NSW Health or that Officer's approved representative." Notification of that approval was published in the NSW Government Gazette on 7 November 2008. 21Following the grant of that approval, the Department of Health required further information from the Council, including plans for the Plant containing details of the proposed dosing facility. These plans were, in turn, provided to the New South Wales Office of Water (NOW) as required by the Department of Health. Thereafter, NOW communicated with both the Council and the Department of Health in connection with the construction of the treatment plant and operation of the proposed fluorine dosing facility. This process continued for some time. 22Construction of the Plant took longer than the Council had anticipated. As a consequence, the Council sought and was granted by the Department of Health an extension of time to commence the process of "upward adjustment of fluorine" in its water supply. 23Construction and operation of the Plant, particularly as it related to the dosing facility for fluorine, involved discussion and negotiation among NOW, Water Infrastructure Group as the successful tenderer, the Department of Commerce, later renamed as "Public Works" as project manager, and the Council. Officers of NOW were concerned to address the operation or the proposed operation of the Plant as well as detail of the dosing facility, its location within the Plant and the mechanism used to control the flow of fluorine into treated water as it passed through other processes at the Plant. This process of assessment by NOW resulted in a requirement that some aspects of the Plant be redesigned. 24Ultimately, the Plant was commissioned, trials were carried out and the supply of water through the Plant commenced on 4 April 2011. However, the fluoride dosing facility was not then in operation. Further modification of the dosing system was required by NOW and that modification subsequently completed by 8 September 2011. As a consequence of the Council advising NOW that the required modification had been carried out, the Plant was inspected by officers of NOW on 12 and 13 October. 25On 14 October 2011, NOW wrote to the Chief Dental Officer of the Department of Health advising of its inspections of the Plant and stating that it was "suitable to dose fluorine to the water supply." The letter from NOW recommended "that NSW Health gives [sic] approval to the Council to use this Plant to add fluorine to the water supply." Three additional items of work required to be carried out by the Council were noted in that letter as was the fact that the carrying out of those items of work was "not critical to the safe operation of this fluoridation plant." 26As a result of receiving the letter dated 14 October from NOW, the Chief Dental Officer wrote to the Council on that same day, advising it to commence fluoridation of its water supply through the Plant. The Council was also advised in that letter that in accordance with the Fluoridation of Public Water Supplies Code of Practice, fluoridation of the water supply was not to commence "prior to the consumers within the supply area being given adequate warning of the commencement date." 27On 27 October 2011, public notice was given by the Council that fluoridation of its water supply would commence on 14 November 2011. No issue arises in the proceedings as to the adequacy of that "warning". 28Commencement of fluoridation only after the Plant had been inspected by Officers of NOW, a recommendation made by NOW to the Department of Health that approval be given for operation of the fluoridation Plant and the approval to commence fluoridation after notification from the Department of Health all reflected the requirements of an approval granted by the Chief Dental officer on 29 March 2011. Whether that approval was one that accorded with the Fluoridation Act is in contest between the parties. However, because of its potential importance to the outcome of the proceedings, the full terms of that approval should be noticed. It is described as an "instrument of approval" and, as I have said, it is signed by the Chief Dental Officer of the Department of Health. Its terms are as follows: "Fluoridation of Public Water Supplies Act 1957 Instrument of Approval Eurobodalla Shire Council shall maintain fluoride in the Eurobodalla Water Supply in accordance with the Fluoridation of Public Water Supplies Act 1957, the Fluoridation of Public Water Supplies Regulation 2002 and the Code of Practice for the Fluoridation of Public Water Supplies. Eurobodalla Shire Council shall maintain the content of fluoride in the Eurobodalla Water Supply at the at [sic] a target concentration level of 1.0mg/L with an overall accuracy of +/-5% and within an operating range of not more than 1.5mg/L and not less than 0.9mg/L in accordance with the Code of Practice for the fluoridation of Public Water Supplies Section 10.1. Eurobodalla Shire Council is prohibited from adding to the Eurobodalla Northern Water Treatment Plant Water Supply fluorine in any form other than Sodium Silicofluoride [Fluoridation of Public Water Supplies Act 1957. Section 6(5)(c)(ii)]. Eurobodalla Shire Council should obtain the approval of the NSW Office of Water for the fluoridation of plant plans and specifications prior to calling for tenders. [Fluoridation of Public Water Supplies Act 1957. Section 6(5)(c)(iii)]. Eurobodalla Shire Council shall not use the Eurobodalla Northern Water Treatment Plant to add fluorine to Eurobodalla Water Supply until after:- (i) officers of the NSW Office of Water have inspected the fluoridation plant and carried out operational testing of the plant; and (ii) the NSW Office of Water has recommended to NSW Health that, approval be given for the operation of the fluoridation plant and (iii) NSW Health has approved use of the fluoridation plant by Eurobodalla Shire Council. [Fluoridation of Public Water Supplies Act 1957. Section 6(5)(c)(iii)]. The design instantaneous water flow rate at the fluoride dosing plant of the Eurobodalla Northern Water Treatment Plant shall be between 58L/s and 232L/s. Eurobodalla Shire Council shall not permanently cease fluoridation at the Eurobodalla Water Supply without the express permission of NSW Health in accordance with Code of Practice Sect 7.3.2."

Statutory Planning Controls 29Between January 2007, when the concept design for the Plant was finalised, through to 14 November 2011, when the fluorine dosing facility was placed into service, the primary land use controls applicable to the site of the Plant were those contained in Eurobodalla Rural Local Environmental Plan 1987 (NSW) (the LEP). Under the provisions of the LEP the site was zoned 1(a)(Rural Environmental Constraints and Agricultural Zone). Development of the site for the purpose of "utility installations" was permissible with the consent of the Council. The Plant was properly characterised as a "utility installation" for the purpose of the LEP: cl 7. 30However, the provisions of State Environmental Planning Policy (Infrastructure) 2007 (NSW) (the Infrastructure SEPP) also had application. By cl 125(3) of that instrument, development for the purpose of water treatment facilities within a number of primary production or rural zones, if carried out by or on behalf of a public authority, was development able to be undertaken without development consent. The expression "water treatment facility" as defined in cl 124, is sufficient to comprehend the Plant that came to be constructed in the present case. By operation of cl 8 of the Infrastructure SEPP, the provisions of cl 125(3) override the provisions of the LEP requiring the grant of development consent. 31It is not in contest between the parties that because development consent was not required for the construction and operation of the Plant, the provisions of Pt 5 of the EPA Act were potentially engaged. The manner in which those provisions were engaged in the grant of any relevant approvals and in the carrying out of any work directed to the fluoride dosing facility at the Plant founds the contest between the parties.

Water supply fluoridation: the statutory regime 32Fluoridation of a public water supply is strictly controlled. That control is vested in the Director-General of the Department of Health (formerly referred to as "the Secretary" of the Department). The Director-General exercises that control under the statutory regime imposed by the Fluoridation Act, together with the Fluoridation of Public Water Supplies Regulation 2007 (NSW) (the Fluoridation Regulation) and the Code of Practice for the Fluoridation of Water Supplies (2002) (NSW) (the Fluoridation Code). The Fluoridation Code is published in the Gazette and is incorporated by reference in the Fluoridation Regulation. 33The Fluoridation Act binds the Crown: s 2. As a body "which supplies water to the public", the Council is a "water supply authority" within the meaning of that Act: s 3. By reference to the latter section, the water supplied by the Council through the Plant involves a supply of water to the public and is therefore a "public water supply" within the meaning of the Act. 34Of particular significance to the determination of the present proceedings are ss 6, 6A and 6B of the Fluoridation Act. Those sections relevantly provide: "6 Addition of fluorine to public water supplies Notwithstanding anything contained in any other Act, a water supply authority may, subject to the provisions of this section and the regulations, add fluorine to any public water supply under its control. (1A) Notwithstanding anything contained in any other Act, a water supply authority shall, subject to this Act and the regulations, add fluorine to any public water supply under its control, if directed to do so by the Secretary. A water supply authority shall not add fluorine to any public water supply except with the approval of or at the direction of the Secretary. A person, not being a water supply authority, shall not add fluorine to any public water supply. A water supply authority making application for the approval of the Secretary under the provisions of this section shall specify in the application the public water supply in respect of which the approval is sought and shall furnish to the Secretary such information as the Secretary may in any case require. (5) (a) The Secretary may by notification published in the Gazette approve or refuse any such application. (b) Such notification shall for the purpose of section 11 be deemed to be a regulation. (c) Any approval granted by the Secretary under the provisions of this section shall be subject to: (i) a condition requiring the water supply authority to whom the approval is granted to maintain the content of fluorine in the public water supply in respect of which the approval is granted at a concentration of not more than the maximum nor less than the minimum concentration (calculated as parts per million) specified in the instrument of approval, (ii) a condition prohibiting such water supply authority from adding to such public water supply fluorine in a form other than that specified in the instrument of approval, and (iii) such other conditions as may in any case be determined by the Secretary and specified in the instrument of approval. (d) The Secretary may at any time after granting any such approval: (i) revoke the approval, (ii) revoke any condition attached to the approval other than a condition attached thereto pursuant to subparagraph (i) or (ii) of paragraph (c), (iii) vary any condition attached to the approval, or (iv) attach new conditions to the approval. (6) Any person, not being a water supply authority, who contravenes or fails to comply with any of the provisions of this section or any water supply authority contravening or failing to comply with any of the provisions of this section or any of the conditions attached to an approval granted to it under the provisions of this section, shall be guilty of an offence against this Act. 6A Directions (1) The Secretary may, by notification published in the Gazette, direct a water supply authority to add fluorine to a public water supply. (2) A direction may be given only if the water supply authority has referred the question of fluoridating the public water supply to the Secretary for consideration and the Secretary has received the advice of the Committee as regards the question. (2A) ... (3) A direction is subject to: (a) a term requiring the water supply authority to maintain the content of fluorine in the public water supply at a concentration of not more than the maximum nor less than the minimum concentration (calculated as parts per million) specified in the direction, (b) a term prohibiting the water supply authority from adding to the public water supply fluorine in a form other than that specified in the direction, and (c) such other terms as may be determined by the Secretary and specified in the direction. (4) The Secretary may at any time after giving a direction: (a) revoke the direction, (b) revoke any term attached to the direction, other than a term referred to in subsection (3) (a) or (b), (c) vary any term attached to the direction, or (d) attach new terms to the direction. (5) Any water supply authority contravening a direction or any terms attached to the direction is guilty of an offence against this Act. 6B Discontinuance of fluoridation (1) A water supply authority to which an approval has been granted or a direction has been given shall not discontinue fluoridating the public water supply concerned, unless the approval or direction is revoked by the Secretary. (2) A water supply authority contravening this section is guilty of an offence against this Act." 35The Committee referred to in s 6A(2) is a reference to the Fluoridation of Public Water Supplies Advisory Committee constituted under s 4(1) of the Fluoridation Act. The constituent members of that Committee are identified in subsection (2) of that section. The duties imposed upon the Committee are stated in s 5(2) which relevantly provides: "(2) It shall be the duty of the Committee to consider and advise the Minister upon such matters and questions as the Minister may from time to time refer to it relating to: (a) ... (b) ... (c) any proposal with respect to the addition of fluorine to public water supplies, (d) the question of fluoridating a public water supply, as referred to the Secretary for consideration under section 6A." 36I draw attention to the provisions of the Fluoridation Act concerning the Committee not only by reason of the reference to that Committee in s 6A(2) but also because the application made by the Council for approval to fluoridate its water supply was referred to that Committee. In a letter from the Director-General to the Council dated 7 November 2008, advising that approval had been granted to fluoridate the Eurobodalla Water Supply, the Director-General states that the Council's request for approval had been considered by the Committee which had advised that fluoridation should be introduced into the Council's Water Supply. Although the Director-General's letter of 7 November indicates that the Committee considered the Council's application on 15 May 2008, that was clearly incorrect as the Council had not submitted its application to the Director-General until 18 June. The Director-General later amended the date of the meeting of the Committee at which the Council's application had been considered to 3 September 2008. 37It will be noticed that s 6(5)(b) of the Fluoridation Act provides that the notification of an approval under s 6 in the Gazette is, for the purpose of s 11, "deemed to be a regulation". Section 11(1) provides for the Governor to make regulations not inconsistent with this Act for or with respect to a number of specified matters. Section 11(3) enables the Regulations to incorporate by reference any codes "as in force at a particular time ... prescribed or published by any authority or body (whether or not it is a New South Wales authority or body)". It is this subsection that authorised the Fluoridation Code to be incorporated by reference into the Fluoridation Regulation. 38There are several clauses of the Fluoridation Regulation that need to be noticed for present purposes. Clause 4 provides that an application for approval to fluoridate a public water supply "is to be in the form required by the Fluoridation Code and is to be accompanied by any documents that are required by the form." The Applicant contends that prior to the Director-General giving the approval on 30 October 2008 to fluoridate the Eurobodalla Water Supply, neither the form or information identified in the Fluoridation Code had been provided to the Director-General. As will become apparent, the relevance of that fact to the determination of the proceedings was not made clear. 39Clause 5 of the Fluoridation Regulation proscribes the fluoridation of a public water supply unless the equipment utilised "allows for accurate fluoride dosing within the limits allowed by the Fluoridation Code." Undoubtedly, the need to ensure observance of cl 5 informed the requirement by NOW that the Council modify the design of dosing equipment initially proposed by the Council. 40Clause 6 further evidences the extent to which equipment related to the process of fluoridation is controlled by the Director-General. That clause identifies actions that are proscribed by a water supply authority, without the written approval of the Director-General, in that the authority: "(a) must not increase the maximum capacity, or reduce the minimum capacity, of the water supply, and (b) must not make substantial alterations to the equipment or apparatus by which the agent is added to the water supply, and (c) must not make any substantial alterations to those parts of the water supply works that are in close proximity to the point at which the agent is added to the water supply, except with the written approval of the Director-General." 41Between June 2008, when the Council made application to the Director-General to fluoridate its water supply, and March 2011, when the Chief Dental Officer issued an "Instrument of Approval" to fluoridate the water supply, the applicable Fluoridation Code was that published in the Gazette on 30 August 2002. A replacement code was published in the Gazette on 8 April 2011 (the 2011 Code). I do not understand any operative provision of the 2011 Code to bear directly upon any issue to be determined in these proceedings. 42Section 2 of the Fluoridation Code is headed "Legislative Framework". After referring to the Fluoridation Act and Fluoridation Regulation, the section states that the Code "includes generally technical material" that is not specified in either the Fluoridation Act or Fluoridation Regulation. The material in the Code is identified as either forming "part of the regulatory framework which water supply authorities that fluoridate are required to follow" or forms part of an advisory guide to such authorities "as to the source of other relevant material or legislation (such as that governing occupational health and safety)". The expressed aim of the Code is "to achieve best practice in the establishment and operation of fluoridation plants ... in order to meet the technical, occupational health and safety, and environmental requirements of the relevant legislation." 43Section 4.1.1 of the Fluoridation Code identifies the process for seeking an approval to fluoridate a public water supply. That process is stated in the form of a flow chart in the Protocol and Form 1 which are attached as Appendix A to the Code. The flow chart or Protocol identifies the grant of an approval to fluoridate early in the process, followed by the preparation of plans, assessment of those plans by the "Department of Land and Water Conservation", the relevant agency within which had, by 2008, become NOW, the authorisation by NOW enabling the water supply authority to call tenders for the dosing facility, the subsequent inspection and testing of the facility by NOW and, subject to that testing proving to be satisfactory, a recommendation by NOW to the Department of Health that use of the facility by the water supply authority be approved. Having regard to that recommendation, if considered "appropriate to do so" an approval may then be given by the Department of Health to the water supply authority for the addition of fluorine to the water supply by means of the approved facility. With some variation later to be discussed, that protocol generally reflects the sequence of events leading to the Council's commencement of fluoridation, through the Plant, on 14 November 2011. 44Section 4.1.1.2 of the Fluoridation Code requires that a water supply authority "not commence fluoridating until a formal Instrument of Approval is received from NSW Health and all NSW Health requirements are in place and operational." The section then identifies those matters that will be specified in the "formal Instrument of Approval" as being:

• The name of the water supply authority.
• The water supply to be fluoridated.
• The fluoridation plant name and location.
• The design water flow range to be treated.
• The allowable fluorine concentration operating range.
• The plant fluorine concentration operating target dose rate.
• The fluoridating agent(s) that can be used.
• Any conditions of approval (eg the water supply authority shall not permanently cease fluoridation without the express approval of NSW Health).
• Any additional plant-specific requirements. 45Section 5 of the Fluoridation Code is headed "Design and Controls for Fluoridation Facilities". As the heading suggests, a number of provisions of that section identify the nature of equipment required to address aspects of the operation of a dosing facility. These include the design of equipment to ensure that the addition of fluoride remains within the permitted range, notwithstanding variations of water flow through the facility, as well as the design of the plant to address operator access and operator safety. The section also addresses the means of storing and handling the fluoridating agent. 46Section 5.1.7 requires that the water supply authority ensure that "the fluoridation plant complies with all legislative requirements". That paragraph continues: "The Fluoridation Act, Regulation and Code of Practice do not contain or reference all legislative requirements that a water supply authority may have to comply with in the design, construction and operation of a fluoridation plant (for example building codes). The responsibility for identification of, and compliance with, relevant legislative requirements lies with the Water Supply Authority." 47Section 6 of the Fluoridation Code addresses occupational health and safety, while Section 7 is headed "Environmental Safety". The former section requires that a water supply authority complies with the Occupational Health and Safety Act 2000 (NSW), the Dangerous Goods Act 1975 (NSW) and the associated Regulations made under those Acts. Section 7 requires, in terms, that a water supply authority complies with the Protection of the Environment Operations Act 1997 (NSW) as well as the Dangerous Goods Act and the Regulations made under those Acts. After referring to those Acts, the Section continues: "In the area of protection of the environment these Acts and Regulations will have precedence over the Fluoridation Act, Regulation and Code of Practice." 48Other topics addressed in the Fluoridation Code may be understood from the Section headings. They include "Control of fluoridating agent" (at [Sec. 8]), "Measurement of fluorine in the treated water (at [Sec. 9]), "Plant operation and process control" (at [Sec. 10]) and "Reporting requirements (at [Sec.11]). Section 10.1.1.1 requires that an operating target of "1.00mg/L in treated water" is to apply unless otherwise specified in the Instrument of Approval. 49As will be apparent from ss 6 and 6A of the Fluoridation Act, the only person or entity having power to approve or direct the fluoridation of a public water supply is the Director-General of the Department of Public Health. Under s 21 of the Health Administration Act 1982 (NSW), the Director-General is empowered to delegate his or her functions under the Fluoridation Act. That power had been exercised by the Director-General so that at all times relevant to the determination of these proceedings, each of the Chief Health Officer and Chief Dental Officer of the Department was delegated by the Director-General to exercise the Director-General's functions under ss 6 and 6A. In the context of s 6 of the Fluoridation Act, that delegated power was not only to approve an application to add fluorine to a public water supply and specify conditions in such approval but also to vary any condition attached to an approval and to attach new conditions to an approval.

The EPA Act 50As the Applicant founds its case upon breaches of Pt 5 of the EPA Act, it is necessary to notice a number of sections within that Part. The principal provisions upon which the Applicant relies are ss 111 and 112. Those sections relevantly provide: "111 Duty to consider environmental impact (1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. (2) Without limiting subsection (1), a determining authority shall consider the effect of an activity on: (a) any conservation agreement entered into under the National Parks and Wildlife Act 1974 and applying to the whole or part of the land to which the activity relates, and (b) any plan of management adopted under that Act for the conservation area to which the agreement relates, and (c) any joint management agreement entered into under the Threatened Species Conservation Act 1995, and (d) any biobanking agreement entered into under Part 7A of the Threatened Species Conservation Act 1995 that applies to the whole or part of the land to which the activity relates. (3) Without limiting subsection (1), a determining authority shall consider the effect of an activity on any wilderness area (within the meaning of the Wilderness Act 1987) in the locality in which the activity is intended to be carried on. (4) Without limiting subsection (1), a determining authority must consider the effect of an activity on: (a) critical habitat, and (b) in the case of threatened species, populations and ecological communities, and their habitats, whether there is likely to be a significant effect on those species, populations or ecological communities, or those habitats, and (c) any other protected fauna or protected native plants within the meaning of the National Parks and Wildlife Act 1974. 112 Decision of determining authority in relation to certain activities (1) A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, unless: (a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity: (i) prepared in the prescribed form and manner by or on behalf of the proponent, and (ii) except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner, (b) notice referred to in section 113(1) has been duly given by the determining authority (or, where a nominated determining authority has been nominated in relation to the activity, by the nominated determining authority), the period specified in the notice has expired and the determining authority has examined and considered any representations made to it or any other determining authority in accordance with s 113(2), (c) the determining authority has complied with section 113(3), (c1) (repealed) (d) where it receives notice from the Director-General that the Minister has requested that a review be held by the Planning Assessment Commission with respect to the activity, the review has been held and the determining authority has considered the findings and recommendations of the Planning Assessment Commission and any advice given to it by the Minister in accordance with section 114, and (e) where it receives notice from the Director-General that the Director-General has decided that an examination be undertaken in accordance with section 113(5), that examination has been carried out and the determining authority has considered the report furnished to it in accordance with that subsection. ... (2) The determining authority or nominated determining authority, as the case requires, shall, as soon as practicable after an environmental impact statement is obtained by or furnished to it, as referred to in subsection (1), but before giving notice under section 113(1), furnish to the Director-General a copy of the statement. ... (4) Before carrying out an activity referred to in subsection (1) or in determining whether to grant an approval in relation to such an activity, a determining authority which is satisfied that the activity will detrimentally affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats: (a) may, except where it is the proponent of the activity: (i) impose such conditions or require such modifications as will in its opinion eliminate or reduce the detrimental effect of the activity on the environment (including critical habitat) or threatened species, populations or ecological communities, or their habits or (ii) disapprove of the activity, or (b) may, where it is the proponent of the activity: (i) modify the proposed activity so as to eliminate or reduce the detrimental effect of the activity on the environment ..., or (ii) refrain from undertaking the activity. ... (6) The provisions of subsection (4) have effect notwithstanding any other provisions of this Act ... or the provisions of any other Act or of any instrument made under this or any other Act. ... " 51Section 110 of the EPA Act contains a number of definitions relevant to Pt 5. By paragraph 14 of its Further Amended Points of Defence, the Defendant accepts that each of the construction of the fluoride dosing facility at the Plant and the operation of that facility was an "activity" as defined in s110. They involve "the carrying out of a work" and "the use of land" respectively, each of which falls within the definition of "activity". 52The expression "determining authority" is defined in s 110 to include a public authority and in relation to any activity means the public authority "by or on whose behalf the activity is or is to be carried out" or a public authority "whose approval is required in order to enable the activity to be carried out." Relevantly, the Council is the public authority on whose behalf the defined activities are to be carried out and the Director-General is the authority whose approval is required to enable those activities to be carried out. 53The term "approval" is also defined in s 110. That definition includes a consent or permission "or any form of authorisation." 54Also to be noticed are the provisions of s 110E of the EPA Act. That section, which was operative at all times relevant to the "activities" being considered in the present proceedings, provided: "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): (a) a modification of an activity, whose environmental impact has already been considered, that will reduce its overall environmental impact, (b) a routine activity (such as the maintenance of infrastructure) that the Minister determines has a low environmental impact and that is carried out in accordance with a code approved by the Minister, (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." (Emphasis added.) 55Before leaving the provisions of the EPA Act, the definition of "environment" in s 4 should be noticed. That term is defined to include "all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings."

Local Government Act 1993 56I have earlier referred to the contention by the Applicant that the fluoride dosing facility at the Plant involved the construction or extension of water treatment works for which an approval was required but not obtained under s 60 of the Local Government Act. That section, as framed up to and including November 2011 when fluoridation of the Eurobodalla Water Supply commenced, relevantly provided that a council "must not, except in accordance with the approval of the Minister for Land and Water Conservation", construct or extend "water treatment works". The section has since been amended to nominate the Minister for Primary Industries as the relevant Minister to give such an approval. 57The power of the Council to construct and operate the Plant, including the fluoride dosing facility, is found in s 24 of the Local Government Act. It provides: "24 Provision of goods, services and facilities and carrying out of activities A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law."

Identification of the Applicant's claim 58Having regard to the submissions of both parties, the manner in which the Applicant has sought to confine its challenge is important to notice. The Applicant does not challenge in these proceedings the validity of the approval given by the Director-General of the Department of Health on 30 October 2008, authorising the Council "to add fluorine to the public water supply under its control". Neither the Director-General nor any entity representing the Department of Health is joined as a party to these proceedings. 59Moreover, the Applicant does not contend that the "instrument of approval" given by the Chief Dental Officer on 29 March 2011 was an invalid exercise of power. Rather, the Applicant does contend that the "instrument of approval" was ineffective to operate as an approval under s 6 of the Fluoridation Act because it was not an approval that was notified in the Gazette (cf s 6(5)(a)). Further, I do not understand the Applicant to contend that the letter of 14 October 2011 from the Chief Dental Officer authorising the Council to commence fluoridation of its water supply was an act tainted by invalidity. 60Neither the decision to construct the Plant, as a water treatment plant, nor its construction and operation as a treatment plant is challenged as being in breach of either Pt 5 of the EPA Act or of the provisions of the Local Government Act. The challenge made by the Applicant is confined to the installation and operation of the fluoride dosing facility within that Plant (Tcpt 9/4 at 4:37-5:30). 61By its Points of Claim, the Applicant pleads (at [47]) that the 27 May resolution of the Council to incorporate fluoridation into any future water supply treatment process was made in breach of ss 111 and 112 of the EPA Act. However, in the course of the hearing and in final submissions the Applicant's counsel expressly disclaimed any challenge to that decision (Tcpt 27/2 at 65:24-30; 9/4 at 31:14-21). In so doing, the Applicant accepted the Council's submission that the 27 May resolution was a policy decision directed to future action and, as such, was not sought to be impugned as a decision, which in itself, was made in breach of either s 111 or s 112 of the EPA Act. 62The Applicant's focus upon the installation of the dosing equipment as a component installed within the Plant, coupled with the operation of that equipment to add fluorine to the reticulated water supply, identifies those two elements as the "activity" for the purpose of Pt 5 of the EPA Act (Tcpt 10/4 at 29:33-34). It is the carrying out of that activity which the Applicant claims is "likely to significantly affect the environment", thereby engaging the provisions of s 112. 63The likely significant affects that the Applicant identifies as being those required to be examined and taken into account are claims of risks to human health by the addition of fluorine to the water supply, coupled with the reliability and acceptability of the equipment designed, installed and operated for dosing the water supply with fluorine. Those affects on human health or matters related to impacts on health that are claimed not to have been addressed by the Council and which also demonstrate significant affect on the environment are identified as being: (i)expected and potential biological effects on humans who ingest fluoridated water; (ii)impacts of fluoridation on persons who may be more sensitive, including bottle fed babies, persons using other fluorine medication, persons with relevant illnesses and pregnant women; (iii)relative risks and benefits associated with different dosing methods and different fluorine compounds; (iv)expected potential impacts of chemicals which accompany the fluorine compounds; (v)the incidence and effects of fluorosis; (vi)the risk and effects of an overdose of fluorine; (vii)alternatives to the fluoride dosing facility; (viii)bioaccumulation; and (ix)available relevant peer review of academic literature directed to affects. 64In addition to or associated with the need to have assessed impacts on human health is the design, by the Council's consultants, of the dosing facility components, coupled with the possibility of fluoride overdosing, due to defective design or operation of the dosing facility with the consequence that an overdosing event could have occurred. In due course, it will be necessary to address the evidence relied upon by the Applicant to support this aspect of its claim. 65Those, in summary, are the substantive factual matters upon which the Applicant relies to found its claim for breach of the EPA Act. There are also procedural "irregularities" upon which the Applicant relies, being those of which earlier mention has been made. Essentially, these irregularities relate to actions taken under the Fluoride Act, first directed to the application for approval under s 6 of the Fluoride Act and the second concerning the absence of evidence that the "instrument of approval" issued by the Chief Dental Officer of the Department of Health on 29 March 2011 had not been published in the Gazette. 66As the approval or approvals given to the Council under s 6 of the Fluoridation Act is a significant component of the Council's case, it is convenient first to address the claimed procedural irregularities and their consequence.

Grant of approvals under s 6 of the Fluoridation Act 67It will be remembered from my earlier recitation of background facts that on 18 June 2008, the Council wrote to the Director-General of the Department of Health, reporting the content of the 27 May resolution and seeking "initial consent to proceed". The initial consent was sought in light of the statement in the Council's letter that it was proceeding to construct the Plant with the consequence that the fluoridation equipment to undertake fluoridation could be installed within that Plant. In response to a subsequent enquiry from the Department of Health as to the provision of the Fluoridation Act under which the application was made, Mr G Searle, the Council's Group Manager, Water and Waste, responded on 11 August 2008 stating that the application was made under s 6. 68On 9 October 2008 a brief was prepared by Dr Shanti Sivaneswaran to provide advice to the Director-General concerning the Council's application under s 6 of the Fluoridation Act. The brief records, by way of background, that "NSW Health, the Local Area Health Service, the Australian Dental Association" have worked with the Council "and local health professionals in promoting the benefits of fluoridating their local water supply." The summary of key issues in the brief prepared for the Director-General included reference to the report of the Council's independent consultant assessing community attitudes and the fact that in a local survey 67.5% of respondents to the survey favoured the addition of fluorine to the water supply. Reference is also made to the response given to the Council on filtering alternatives available to the population not wishing to consume fluoridated water as well as the recommendation made by the Fluoridation of Public Water Supplies Advisory Committee which recommended that the request from the Council be approved. 69Finally, the brief contained recommendations framed in the following terms:

• It is recommended that in accordance with section 6 of the Act, the Director-General sign the attached request by Eurobodalla Shire Council to adjust the fluorine levels to the Eurobodalla Shire water supply to one part per million in accordance with the guidelines issued by the NH & MRC (attachment 6).
• If the request is approved, it is recommended that the Director-General sign the attached letter advising the Eurobodalla Shire Council of the decision (attachment 7).
• If the approvals are signed by the Director-General, it is recommended that Legal Branch formalise them by way of notification published in the Government Gazette in accordance with section 6 of the Act. Attached to the brief were a number of documents including the Council's letter of application, a copy of the executive summary from the Council's independent consultant, a document entitled "Fluoridation of Public Water Supplies Information Sheet" and a document entitled "Water Fluoridation Alternatives". 70On 30 October 2008, the Director-General of the Department of Health signed a document entitled "Notification of Approval of Addition of Fluorine to a Public Water Supply (Eurobodalla Shire Water Supply)". The operative provisions of that document are in the following terms: "Pursuant to section 6 of the Fluoridation of Public Water Supplies Act 1957, I, Professor Debora Picone AM, Director-General of the Department of Health, do hereby approve an application by the Eurobodalla Shire Council to add fluorine to the public water supply under its control (in this notification referred to as "The Eurobodalla Shire Water Supply")." That approval was then expressed to be subject to three conditions, the terms of which I have quoted at [20] above. That notification was published in the Gazette on 7 November 2008 in precisely the same terms as I have stated. 71I have earlier referred to the Fluoridation Regulation which, by cl 4, provides that an application to fluoridate a public water supply has to be in the form required by the Fluoridation Code and be accompanied "by any documents that are required by the form." The Fluoridation Code applicable at the time was that published in the Gazette on 30 August 2002. As my earlier reference to section 4.1.1.1 of that Code indicated, it states that "the process" to gain an approval to fluoridate "is set out in the protocol and Application Form 1 attached as Appendix A." Form 1 identifies by numbered paragraphs, information that is to be inserted in the form. That information includes detail which implies that the dosing facility has been designed at that point in time. Information directed to matters such as the "instantaneous flow rate at point of fluoridation with plant operating", "proposed location of fluoridation equipment", "location of precise point of fluoridation" and "method to be followed in preventing back-syphonage or back flow of fluorine solution into potable water supply serving chemical feeder", all demonstrate that design, at least to a preliminary stage, has been undertaken at the time at which Form 1 is submitted to the department. 72In the course of its submissions, the Applicant drew attention to the fact, accepted as correct by the Council, that at the time at which the Director-General issued and published in the Gazette her approval dated 30 October 2008, no Form 1 had been submitted to the Department. So far as is known, the information before the Director-General at that time was the brief prepared by Dr Sivaneswaran together with the documents accompanying that brief. From the terms of the conditions imposed upon the approval, it is clear that regard was had to the Fluoridation Code. 73While the Applicant's counsel drew attention to the absence of Form 1 and some, if not all, of the information that it sought to be produced when the decision was made on 30 October 2008, it was never made apparent what legal consequence flowed from its absence. The case pleaded by the Applicant did not allege that the absence of such information rendered the Director-General's decision to be invalid, a contention, if made, being one that did not fall within the jurisdiction of this Court to determine. 74However, any claim that the absence of Form 1 impacted upon the legal validity of the approval is answered by the provisions of subss (4) and (5) of s6 of the Fluoridation Act. The provisions of those subsections have been quoted in full at [34]. The information that is required to be provided to the Director-General in accordance with subs (4) is the specification "in the application" of the public water supply in respect of which the approval is sought. Otherwise, the information to be provided is that which the Director-General "may in any case require". 75Having identified the requirement for the making of an application in s 6(4), subs (5) empowers the Director-General to "approve or refuse any such application." Those provisions are clearly in reference to an application satisfying the requirements of subs (4). The two provisions combined did not manifest any legislative intent that absent Form 1 in Appendix A to the Fluoridation Code with the information that it requires, should render invalid an approval given by the Director-General under s 6(5). 76I am satisfied that the approval given by the Director-General on 30 October 2008, notification of which was published in the Gazette on 7 November 2008 was an approval under s 6 of the Fluoridation Act authorising the Council to add fluorine to its water supply. It was an approval clearly intended to be one that authorised the process subject to meeting the more detailed requirements specified for the fluoridation of a water supply in the Fluoridation Regulation and, more particularly, in the Fluoridation Code. So much is apparent from Condition 1 of the Approval which constrains the Council from adding fluorine except in accordance with the Act, Regulation and Code. I have earlier described in general terms matters which the Fluoridation Code addresses, including equipment and the specification for fluoridating agents, including sodium silico fluoride, being the agent ultimately selected for use in the Eurobodalla dosing facility. The constraints imposed by Condition 1 seem to me to be intended to identify the source of limitation addressed in s 6(5)(c)(ii), that is by "prohibiting" the addition of fluorine to the water supply until, among other matters, the requirements of the Fluoridation Code as to fluoridating agents had been determined. 77Having determined that the approval given on 30 October 2008 was an operative approval for the purpose of s 6 of the Fluoridation Act, it is next necessary to consider the effect, if any, of the "instrument of approval" given by the Chief Dental Officer on 29 March 2011. As I earlier recounted, the Applicant contends that this document has no legal consequence as it is not an approval notified in the Gazette. 78When seeking to understand the effect of the "instrument of approval", it is necessary to notice the provisions of s 6(5)(d) of the Fluoridation Act. In general terms, those provisions identify the ambulatory nature of an approval given under s 6. They do so because not only do they authorise the Director-General to revoke the approval as a whole or revoke conditions attached to an approval, but also to vary those conditions or add new conditions. In short, they demonstrate the extent of control that is exercised by the Director-General over fluoridation of a public water supply pursuant to s 6 of the Fluoridation Act. 79As I have earlier recorded, the functions of the Director-General under s 6(5)(c) and (d) had been delegated to the Chief Dental Officer. Properly construed, it seems to me that in issuing the instrument of approval on 29 March 2011, the Chief Dental Officer was exercising the function of the Director-General under s 6(5)(d) by varying conditions and adding new conditions to the approval granted on 30 October 2008. Although the conditions are not numbered in the "instrument of approval", the first paragraph of that document operates by way of variation to Condition 1 of the 2008 approval. The third paragraph of the instrument of approval adds a specific condition by specifying the form in which fluorine is to be added to the water supply. The remaining paragraphs of the instrument of approval attach new conditions conformably with the power so to do contained in s 6(5)(d)(iv) of the Fluoridation Act. 80Despite the heading "Instrument of Approval" in the document signed by the Chief Dental Officer, it is relevant to contrast that document, which I have quoted in full in [28], with the 30 October 2008 approval signed by the Director-General. The operative provision of the latter approval, the terms of which I have quoted at [70], contain words identifying it as being an approval. In contrast, the Chief Dental Officer's "instrument of approval" does not contain any words purporting to express approval: rather, in the absence of any words purporting to grant an approval, the clear intention of the "instrument of approval" was to vary and add to conditions of the approval previously granted by the Director-General. To the extent that conditions imposed by the latter are repeated, the apparent purpose of the "instrument" is to reflect a comprehensive document stating all of the conditions that currently attach to the approval first granted on 30 October 2008. 81That understanding of the manner in which the "instrument of approval" should be understood is important in addressing the submission of the Applicant that the Chief Dental Officer's decision has no legal consequence because it was not published in the Gazette. What is required by s 6(5)(a) to be notified by publication in the Gazette is the approval or refusal of "any such application", being an application made to the Director-General under subs (4). That application is one seeking approval to add fluoride to the public water supply specified in the application. Paragraph (b) of subs (5), deeming the notification to be a regulation coupled with provisions of both paragraph (a) of the subsection together with the nature of the application letter defined in subs (4) make tolerably clear that what is required to be notified in the Gazette is the decision of the Director-General in the determination of an application to fluoridate a nominated water supply. Thus, to be effective, the 30 October 2008 approval was required to be notified by publication in the Gazette. 82However, s 6(5) is silent on the need for publication of any action taken by the Director-General (or his or her delegate) in exercise of the power available under s 6(5)(d). If any decision made in exercise of the power under that paragraph had been required to be notified in the Gazette, I would have expected a provision to that effect to be found, if not in the paragraph, then otherwise in subs (5). Given the terms in which paragraph (a) of the subsection is expressed, requiring notification in the Gazette of the decision made in response to an application to fluoridate a water supply, I would not imply from that paragraph an intention that, where approval is granted, any change to that approval must also be notified in that manner. Both the terms and sequence of provisions in s 6(5) suggest to me that notification in the Gazette is not required where, as here, conditions attaching to an approval to fluoridate a public water supply have been varied and additional conditions added. 83As a consequence, I conclude that on and from 30 October 2008 there has been a current approval authorising the Council to fluoridate its reticulated potable water supply, subject to the conditions imposed at that time and which continued to be the operative conditions until 29 March 2011. From that date the varied and additional conditions imposed under delegation by the Chief Dental Officer are the conditions which thereafter attached to the approval. It is that approval, so conditioned that was the operative approval when fluoridation commenced on 14 November 2011. The authorisation to commence fluoridation is found in the letter from the Chief Dental Officer to the Council on 14 October 2011, being an authorisation given pursuant to subparagraph (iii) of the fifth paragraph of the varied and supplementary conditions imposed on 29 March 2011. 84I should add that the process whereby an approval is granted, followed by more detailed requirements that may be added as varied or additional conditions to that approval is consistent with the process identified in the Fluoridation Code. The protocol in Appendix A contemplates an approval at an early stage of the process, then followed by the preparation and submissions of the works necessary to implement the approval conformably with the constraints that both the Fluoridation Regulation and the Fluoridation Code itself identify. As I have earlier outlined, the protocol contemplates the assessment of all works and trial operation of the dosing mechanism by NOW, who then recommend to the Department of Health the use of the dosing facility before the latter department authorises the commencement of dosing. In those circumstances, it is unsurprising that conditions be imposed, as they were in the present case, consistent with that protocol.

The s 111 issue 85The provisions of s 111 of the EPA Act have earlier been quoted in full (at [50]). While the requirement that a "determining authority" in its consideration of an activity is to "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity", the obligation thereby expressed is circumscribed by reasonableness and practicability in addressing the standard so expressed (Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (1986) 7 NSWLR 353 at 355; Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; 179 LGERA 346 at [158]; Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; 195 LGERA 229 at [85]). Furthermore, in exercising the obligation under the section, qualified by the requirement for reasonableness, regard can properly be had to all relevant material available to the determining authority at any point of time when considering a nominated activity (Oshlack v Rous Water (No 2) [2012] NSWLEC 111; 189 LGERA 243 at [80]). Where the obligation upon the "determining authority" under s 111 is engaged as a consequence of that authority being the one by who the activity is to be carried out, the requisite consideration under s 111 may properly be an evolving one and can properly be exercised by utilising and relying upon the work of others (Parks and Playgrounds Movement Inc v Newcastle City Council at [159]). 86I have earlier identified the "activity" in respect of which the Applicant brings its challenge. In the context of s 111, the obligation cast upon the Council was directed to the carrying out of that activity as a "determining authority" as distinct from one whose approval was required for that activity. 87Although the 27 May resolution is not the subject of challenge by the Applicant, material provided to the Council both before and after that time is relevant to be noticed when considering the claimed breach of s 111. That material is voluminous. 88So far as the evidence reveals, the first suggestion to the Council that fluoridation of its water supply should be considered came as a result of a submission from Mr J Irving of the Northern NSW Oral Health Network. In a letter to the Council's social planner on 17 January 2007, Mr Irving briefly summarised the legislative regime for fluoridation, identified the support for fluoridation from the NSW Shires Association, indicated that the capital costs of the fluoridation facility was borne by NSW Health and identified the cost benefit to the community by fluoridation of the water supply. He referred to research emanating from the University of Sydney supporting fluoridation. Data from the Australian Research Centre on Population Oral Health was provided indicating that in Eurobodalla, tooth decay in the critical age group was twice the State average. After stating that 90% of the State population has access to a fluoridated public water supply, he referred to a "minority" who seek to oppose fluoridation. He concludes by stating: "The bulk of the scientific and health evidence on water fluoridation continues to support its safety and effectiveness as a public health measure and that is reflected in the policies of every State, plus the Federal Government, in Australia." Liaison with the Council on the topic is proposed. 89The Minutes of the Council's meeting held on 27 March 2007 indicated that a Councillor sought to have the Council addressed by a delegation from the University of Sydney School of Dentistry and Mr G Thomson, who had been working with the Moruya Hospital on fluoridation of its water supply. The evidence does not disclose whether that presentation did, in fact, occur. 90However, as a result of consideration of the topic of fluoridation by a group established by the Council and known as the Eurobodalla Healthy Communities Group, which included members of the Council's staff, it resolved on 3 May 2007 that the Council endeavour to arrange a presentation by a professional body on that topic. The suggestion was that the regional Oral Health Service of the Department of Health be contacted for this purpose. As a consequence, Mr Irving, as the Project Manager of Oral Health in the Department of Health, Dr Graham Thomas and two oral therapists made a presentation to the Works and Services Committee of the Council on 10 July 2007. The Minutes record the summary of the presentation then made. The oral therapists reported on the poor state of dental health in the Eurobodalla area for children under the age of five, while Dr Thomas spoke of the benefit of fluoridation in controlling oral disease. The tenor of the presentation was clearly strongly supportive of fluoridation being introduced. 91From about the time at which the Council was addressed on 10 July, it received numerous letters to which, in some cases, articles were attached and which both supported and opposed the fluoridation of the Council's water supply. Although the voluminous evidence does not readily allow a dissection of this material to that received prior to 27 May 2008 and that received subsequently, the majority of the material seems to have been received prior to the 27 May resolution but continued to be forwarded to the Council until November 2011. Exhibit 5, which contains that material and is said to reflect "public submissions", extends over some almost 280 pages. In that same period the Applicant engaged with the Council, together with individual Councillors, providing numerous articles, correspondence and debates directed to the health issues said to arise by the fluoridation of a public water supply. The totality of that material extends for almost 500 pages. 92On 18 October 2007, the Councillors conducted a "water workshop", in the course of which fluoridation was a topic addressed. Prior to the workshop, the Councillors had received material of the kind that I have indicated but included a recent letter from the Chief Dental Officer in the Department of Health supporting fluoridation as a measure that was both effective and supported by "every Federal and State Health Service in Australia". 93As a consequence of subsequent liaison between the Council and the Centre for Oral Health section of the Department of Health, the Council indicated the prospect of establishing community consultation upon the topic of fluoridation and sought funding assistance from the Department. The response from the Department on 27 November 2007 was to provide the Council with brochures outlining the benefits of fluoridation, being brochures that could be distributed to the community. 94In January 2008, an organisation known as Environmental and Facilitation Consulting (ENFAC) was retained to undertake an independent community consultation process on behalf of the Council. That consultation was directed to the consideration of community attitudes to the fluoridation of Eurobodalla's water supply. Subsequently, the Department of Health provided to the Council a Fluoridation of Public Water Supplies Information Sheet intended for distribution to the public. This Information Sheet provided an overview of the oral health in Eurobodalla, summarised in the evidence supporting water fluoridation, identified the relevant legislation and contained other information. 95In the meantime, the Council had established an ad hoc fluoridation community consultation focus group which met on 21 February 2008. This focus group was constituted by members of the community who were known both to support and to oppose fluoridation. The public officer of the Applicant was one those who attended and spoke at this meeting. After discussing the respective opinions of those attending the meeting, it was agreed that the form of brochure to be distributed to the public should be agreed by the Council in a form that reflected with some objectivity the competing arguments. The form and terms of material to be distributed to the population for the purpose of surveying community attitudes was subsequently agreed at a meeting of the Council held on 26 February 2008. 96The information, document and survey form were distributed to residents in March 2008. In addition, information stalls were operated by the Council, with publicity given to the survey, indicating that the community consultation process would conclude on 4 April. In the meantime, an agreement was reached between the Council and the Department of Health whereby the Department provided funding for the consultation process. 97By 9 April 2008, the Council had received about 3,400 completed survey forms out of a total number of 17,000 forms distributed. The returned forms reflected responses from a little over 6,000 respondents, 67% of whom favoured fluoridation while 29.4% were opposed. 98As I have earlier recorded, a report was prepared for the meeting of the Council on 20 May 2008 which attached a report prepared by ENFAC upon the consultation process. That report described the process and analysed the results from both the survey conducted as well as targeted community consultation events, including information stalls. Issues identified by both those favouring and those opposed to fluoridation were summarised, as were the comments from those who had responded in any form during the consultation period. The report included letters to the editor that had been published in local newspapers during the consultation period. As I understand the evidence, that consultation report together with a large number of submissions received prior to the meeting were before the Council at that time. 99It should also be recorded that immediately prior to the Council meeting on 20 May 2008, the Council conducted a "workshop" which was addressed by a number of persons both supporting and opposing fluoridation. When the Council formally convened following that workshop, it resolved not to fluoridate its water supply. 100However, as I have earlier recorded, that decision was almost immediately followed by a rescission motion that ultimately led to a further meeting of the Council on 27 May 2008. 101On 22 May 2008, Mr Irvine, as project manager for "Teeth for Health", a project within the North Coast Area Health Service of the Department of Health forwarded an email to each member of the Council. He recorded that following his presentation to the Council on fluoridation in 2007, he understood that the Australian Medical Association, the NSW Cancer Council, the Australian Dental Association and others had forwarded letters to the Council supporting fluoridation. He stated that other bodies supporting fluoridation included Kidney Health Australia and NSW Diabetes Association. To that email he attached three documents. They comprised a substantial document prepared by the Commonwealth National Health and Medical Research Council (the NHMRC) entitled Systematic Review of Fluoridation published in late 2007, a further publication entitled NHMRC Public Statement, reflecting a short summary of that body's review document together with a journal article entitled "When Public Action Undermines Public Health: a Critical Examination of Anti-Fluoridationist Literature", described by Mr Irving as an examination of why and how people oppose fluoridation. The NHMRC "systematic review" document is lengthy and detailed, the purpose of which is described in the executive summary as being a systematic review to consider "the recent evidence relating to the efficacy and safety of fluoride interventions, with emphasis upon those tabled to be delivered as a widespread public health initiative." In the NHMRC Public Statement, the aim of water fluoridation is said to involve "the adjustment of natural fluoride concentration in fluoride-deficient water to that recommended for optimal dental health." The recommendation resulting from the study and reflected in the Public Statement is stated to be: "Fluoridation of drinking water remains the most effective and socially equitable means of achieving community-wide exposure to the caries prevention effects of fluoride. It is recommended that water be fluoridated in the target range of 0.6 to 1.1mg/L, depending on climate, to balance production of dental caries and occurrence of dental fluorosis." Both the Review document and the Public Statement refer to risks associated with fluoridation, one of those risks is acknowledged to be fluorosis, the majority of which "is not considered to be of aesthetic concern". The Public Statement further observes that the prevalence of fluorosis "has been significantly reduced with more appropriate use of other fluoride sources." Dental fluorosis is described as being caused by exposure of the teeth to fluoride during tooth development, its impacts primarily being aesthetic. In mild to moderate cases, white flecking or mottling will be apparent on teeth while in a severe case, tooth enamel may be damaged. 102Obviously, the material contained in the three documents provided by Mr Irving on 22 May was additional to all other material that was before the Council at its meeting on 20 May. So also were further written submissions from members of the community, no doubt prompted by an understanding that despite the resolution of 20 May, a notice to rescind that motion had been lodged and the question of fluoridation was again to be debated at the meeting of 27 May. The evidence in Exhibit 5 revealed that between 20 and 27 May, some 20 separate letters or submissions were made to the Council providing material both supporting and opposing fluoridation. In addition, some nine emails were sent to the Council or Councillors on behalf of the Applicant either responding to submissions made by others or providing articles or reference material directed to the presence of fluoride in drinking water. So much is apparent from the correspondence passing between the Applicant and the Council which was tendered in evidence. 103I have earlier recorded that at its meeting on 27 May 2008, the Council convened a public forum as a precursor to addressing its decision to rescind its earlier resolution. The Minutes record that the Council was addressed by 16 members of the public addressing different aspects of what might be called the fluoridation debate. One of those addressing the meeting was Mr Irving from NSW Health while others included medical practitioners, dentists or those concerned with dental health. Yet others, including a representative of the Applicant, spoke or presented material based upon both personal opinions and research. Most who spoke provided a written copy of their respective submissions to the Council for consideration by Councillors. Once this process was completed, the Councillors considered the rescission motion and ultimately resolved in the manner that I have earlier recorded and described as the 27 May resolution. 104I have recorded these matters at some length as they are relevant to the claim by the Applicant that the Council was required to but failed to consider matters affecting or likely to affect the environment conformably with s 111. In referring to particular documents, I have done so as they contain material directed to the impact upon human health which is the "environmental impact" upon which the Applicant has focused in seeking to impugn the actions of the Council. 105That focus upon human health impacts is understandable, given that it was not within the power of the Council unilaterally to commence fluoridation of its water supply. Given the provisions of the Fluoridation Act, the only function that the Council could exercise at the time of the 27 May resolution was to make what has been described as the "policy decision", namely one to make application to the Director-General of the Department of Health for approval to fluoridate the water supply. The mechanism by which that was to be done and the rate of fluoridation was within the sole province of the Director-General. Those are matters to which I will refer in more detail later in these reasons. 106Given its limited role as of May 2008, I am satisfied that the Council did take into account to the fullest extent reasonably possible all matters affecting or likely to affect "the environment", understood for present purposes as an aspect of the surroundings of humans. The steps taken by the Council leading to the May 27 resolution, together with the voluminous material made available to it, sufficiently enabled its members to assess the impacts or likely impacts upon human health if the level of fluoride was elevated to an "optimal level" in its potable water supply. A policy decision so to do had the support of Commonwealth and State Government bodies, the NHMRC and the peak medical and dental professional associations. 107While those and other bodies supported the concept of public water supply fluoridation, the material available to the Council also contained critical assessment of fluoridation and the precautions necessary to be observed if fluoridation is undertaken. That critical assessment is found not only in the NHMRC Review, but is found in material provided to the Council by the Applicant. Examples of the latter can be found in a short article by the World Health Organisation addressing the health problems of naturally occurring high levels of fluoride in drinking water, provided to the Council on 26 May 2008, an extract from an article published in the Irish Medical Journal, critical of fluoridation, provided to the Council on 23 May 2008 and excerpts from a 2006 review of the EPA Drinking Water Standard, also forwarded to the Council on 26 May. 108The recognition that reasonableness or reasonable practicability are implicit in the obligation imposed by s 111means that where, as here, controversy is exposed by extensive reference to reports and articles, it is unnecessary for a Council to seek out yet a further opinion in order to satisfy the requirements of s 111. In the present case at least, it is material that members of the Council were capable of assessing and determining which view of the controversy was to be preferred. 109In the course of the Applicant's submissions, it contended that the Court might more comfortably conclude that the obligation imposed by s 111 had not been observed because there was no report before the Council, beyond the independent consultants public consultation report, that drew together the extensive material and sought to assess the debate that emerged from that material. However much such a report may have been useful, its absence does not demonstrate, without more, that matters contained in the voluminous material before the Council were not taken into account when the Council resolved as it did on 27 May 2008. No evidence is adduced leading to the inference that the material was not considered and, in the absence of evidence to the contrary, it must be assumed that Councillors had available to them and did consider the material that had been provided to the Council (Schroeders Australia Property Management Limited v Shoalhaven City Council [2001] NSWCA 74 at [67]; Notaras v Waverley Council [2007] NSWCA 333; 161 LGERA 230 at [132]). 110In [63] I listed nine topics that, according to the Applicant's points of claim, were topics reflecting impact on human health and therefore the environment as defined in s 4 of the EPA Act, in respect of which the Council had failed to address conformably with s 111. An examination of the voluminous material that has been tendered reveals that, in fact, documents directed to each of those topics were available for consideration by the Council. The listed topics and the documents in evidence that address them are identified in the document annexed and marked "A" to this judgment. 111Although I have focused upon the position as at May 2008, the relevance of the material then available to the Council directed to fluoridation does not cease to be relevant thereafter when addressing the obligation under s 111. While the terms of the section indicate an ongoing obligation, subsequent consideration of a proposed activity may be informed by the understanding of that activity that has already been gained. 112However, the extent or ambit of that obligation needs to be considered in the context of what transpired subsequent to 27 May once the Council had made application to the Director-General of the Department of Health for approval to fluoridate its water supply. Consideration of the provisions of both the Fluoridation Act and s 110E of the EPA Act is required in order to address the ambit of that obligation.

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.

The s 112 issue 148Relevant to the circumstance in the present case, s 112 operates, if at all, upon the carrying out by the Council of the "activity" that the Applicant has identified. Its provisions were potentially engaged at the time immediately prior to operating the dosing facility so as to introduce fluorine to the water supply. For reasons earlier stated, that activity, including installation of the components designed and installed to introduce fluorine to the water supply, falls within the purview of the approval given by the Director-General under s 6 of the Fluoridation Act. That being so, the provisions of s 110E(c) are engaged so that s 112 does not apply to the carrying out of the activity. 149However, if I be incorrect in so concluding, it is necessary to address the evidence directed to this aspect of the Applicant's claim. Both parties accepted that whether the carrying out of the activity was likely to significantly affect the environment was a jurisdictional fact to be determined by me. As a consequence, the evidence that was relied upon by the parties included that of four experts. 150Before turning to that evidence I should refer to the reliance placed by the Applicant on statements in documents before me directed to the "significance" of fluoridation. The introduction to the Fluoridation Code commences in the following terms: "Fluoridation of drinking water at optimal levels remains the most significant dental public health program in New South Wales and Australia." 151In a letter dated 10 April 2008 to the Mayor, Mr Irving, in his capacity as Project Manager of "Teeth for Health" within the Department of Health wrote: "Fluoridation of public water supplies will have an immediate, proven, safe and effective impact and significantly improve oral health across a population once it is introduced." 152These are examples of statements of "significance" that appear in several documents. The Applicant relies upon them to sustain a submission that the fluoridation of the Eurobodalla Water Supply will have a significant affect upon the environment. I do not accept that, read in isolation, such statements are of a kind that demonstrate the engagement of s 112 in assessing the activity. The use of derivatives of the word "significant" in describing a particular benefit or detriment does not, to my mind, equate to a significant affect upon the environment as directed by s 112. 153The Applicant relied upon the evidence of Dr Andrew Harms, a dental practitioner practising in Adelaide, who held a bachelor's degree in dental surgery from Adelaide University. His tertiary education commenced in the field of biochemistry and zoology with a particular interest in toxicology. In addition to practising dentistry he is a part-time clinical tutor in the Faculty of Dentistry at the University of Adelaide. While not opposed to the topical use of fluoride by dental practitioners, he identified a number of collateral effects from the addition of fluoride to a public water supply that include fluorosis, delayed tooth eruption and the retention of fluoride in the body ingested from fluoridation of public water supplies when the health consequences of such ingestion are said to be unknown. He makes reference to literature that supports his opinion as to these collateral effects. 154Dr Harms was a member of the Australian Dental Association from 1978 to 2007. In 1996 he was president of the South Australian branch of the Australian Dental Association. He is no longer a member of the Association, one reason for which, as I understand his evidence, being that he does not support the policy of that Association favouring fluoridation of water supplies. 155The Council relies upon the evidence of Emeritus Professor Andrew Spencer who was for some time the Professor of Social and Preventative Dentistry in the School of Dentistry at the University of Adelaide and also the Director of the Australian Research Centre for Population Oral Health within that University. He has degrees from the University of Melbourne including a Master of Dental Science in Childrens and Preventative Dentistry, a Master of Public Health degree from the University of Michigan and a Doctorate in Philosophy from the University of Melbourne, all directed to aspects of dentistry. He established the Dental Statistical Research Unit within the University of Adelaide, the role of which is said to be "to improve the oral health of Australians through the collection, analysis and reporting of information on oral health and access to dental care, the practice of dentistry and the dental labour force in Australia." 156Dr Harms' affidavit evidence is very detailed, containing a substantial volume of statistical material responding to the evidence of Dr Spencer. In essence, he disputes each of the claims made by Dr Spencer. His conclusion is expressed at [104] of his affidavit in the following terms: "Research conducted with colleagues at the [Australian Research Centre for Population Oral Health] provides detailed and consistent evidence that exposure to water fluoridation is effective, that is there is an association with lower caries experience among those with high exposure compared with those with low or little exposure. The size of the benefit is larger for the deciduous dentition of young children (approximately 40-50%) than in the permanent teeth of children and adolescents (20-30%)." 157The difference between Dr Harms and Dr Spencer is succinctly captured in the joint report that they prepared. That report demonstrates disagreement as to the reliability of statistics to support their competing theses. While Dr Harms referred to limited data to support the views that he had expressed, Dr Spencer referred to what he described as "formal statistical analysis of appropriate data" to identify the benefit of exposure to water fluoridation among Australian children, young adults and adults. By reference to that data, Dr Spencer maintained that the difference in eruption time of permanent teeth by exposure to fluoridated water was minimal, supported in his oral evidence by reference to data that tended to demonstrate that the difference in eruption time appeared, at most, to be a difference of months. He also maintained that fluoridation may reduce malocclusion that results from the premature loss of deciduous teeth. 158The joint report demonstrated disagreement on the "prevalence, severity and impact of dental fluorosis among children". Dr Harms' claim to see children affected by fluorosis regularly, asserting that it is "widely accepted" that medium to severe fluorosis occurs in 3% to 5% of the population whose water is fluoridated. However, when challenged on that statistic, he was not able to compare the occurrence of fluorosis in a non-fluoridated water supply given that there are other vectors through which fluorosis occurs, including naturally occurring fluoride in potable water that exceeds the level achieved in controlled addition of fluoride to a water supply that does not contain naturally occurring fluoride. 159Dr Spencer sought to demonstrate not only that fluorosis occurs in both fluoridated and non-fluoridated water supplies, its prevalence has reduced since the adoption of guidelines on the use of fluoridated toothpaste by young children. He claimed that fluorosis seen in Australian children is predominately in the range of very mild to mild which has no negative impact on the perceived attractiveness of teeth and has no negative impact upon oral health or related quality of life. 160A further difference raised in the joint report related to the use of fluoridated water to reconstitute infant formula powder. While Dr Harms identified concern about the constituents of imported infant formula powder, Dr Spencer referred both to the advice of the American Dental Association to the effect that infant formula can be reconstituted with fluoridated water and also data available indicating that bottle feeding of infants with fluoridated water in South Australia has not been associated with higher prevalence of dental fluorosis. 161Dr Harms acknowledged that his opinion as to the detrimental effect of fluoridating the public water supply did not accord with the position in that regard of Commonwealth bodies, including the NHMRC, the position of State Governments, the position of the Australian Dental Association and statutory bodies in both Canada and the United States supporting the retention of fluoridated public water supply systems. 162The Council also relied upon the evidence of Dr Anthony Brown, a public health physician and occupational physician. Dr Brown is the Associate Dean and Head of the School of Rural Health within the Sydney Medical School at the University of Sydney. He has academic qualifications from both the University of Melbourne and from Monash University. 163In his evidence, Dr Brown first addressed a number of papers identified in paragraph 29 of the Applicant's Points of Claim, it being asserted that those articles conclude that there is a significant risk that fluoridation of water to a concentration of 1mg/L is harmful to human health. Apart from reference to these articles in the Points of Claim, the Applicant did not otherwise seek to support these articles by evidence tendered in the course of the proceedings. As a consequence, I do not stay to address Dr Brown's response to these articles. 164Dr Brown addresses the evidence given by Dr Harms as to the collateral effect of adding fluoride to a public water supply from the perspective of a public health medical practitioner. Dr Brown identifies skeletal fluorosis as a disease of bones caused by excessive absorption of fluoride from one or more sources. Its prevalence is in countries where water supplies have naturally occurring high levels of fluoride. Those levels exceed the level at which fluoride is permitted in the Eurobodalla Water Supply. He described skeletal fluorosis as being a rare disease in Australia, particularly where water is fluoridated at the concentration level permitted in Eurobodalla. At that level he expresses the opinion that skeletal fluorosis is not a risk. In cross-examination, he agreed that approximately 50% of fluoride consumed by humans is retained within the body and 50% excreted. That which is stored in the body is stored where calcification occurs principally in bones and teeth. Accumulation of some level of fluoride in the body was necessary to achieve the effects observed in teeth. He also indicated that fluoride in the body had some beneficial effect for the treatment of osteoporosis. He rejected the suggestion that at a dosage level of 1mg/L there would be an observable effect on human bones. Levels in excess of 4mg/L would be required to produce some evidence of skeletal porosis. 165Dr Brown was also cross-examined as to the impact of fluoride on the pineal gland. He was referred to a study emanating from the School of Biological Science at the University of Surrey which Dr Brown acknowledged indicated an accumulation of fluoride in the pineal gland of a small sample of older people. A function of the pineal gland is to synthesise melatonin, an important function for the human body. Ultimately, he rejected any inference that accumulation of fluoride in the pineal glands of children could give rise to a serious risk of injury or disease. His response was to indicate that it had not been established that fluoride in the pineal gland caused any abnormality in function. The Surrey University study showed the presence of fluoride in the pineal gland but its presence was passive with no indication that it was causing a particular problem. 166Dr Brown also responded to the concern expressed by Dr Harms as to the use of Redox, being the product utilised by the Council as the agent for introducing sodium silica fluoride to the water supply. The Material Safety Data Sheet for that product addressed a number of matters directed to the safe handling of that product. The safety data sheet contained warnings about the toxicity of the concentrated product, indicating that it was listed on Schedule 6 of the Poisons Act. However, he identified the safety data sheet as one directed to people handling the raw product, essentially as an occupational health and safety matter. The data could not be used to extrapolate the effects of the material when diluted in a very large volume of water to the concentration allowed by the approval given under s 6 of the Fluoridation Act. 167Dr Brown concluded by stating that fluoridation of public water supplies represented: "an efficient and equitable prevention activity and that the experience in Australia and elsewhere was that fluoridation at the level used in Eurobodalla "is not associated with significant adverse health effects." 168The Council also relied upon the evidence of Dr John Chapman, an ecotoxicologist. He holds an honorary scientific fellowship with the Office of Environment and Heritage and is also an adjunct professor at the University of Technology, Sydney. Until 30 June 2012, he was the manager of the ecotoxicology and environmental contaminants section at the New South Wales Office of Environment and Heritage. He holds tertiary degrees including a PhD in Organic Chemistry from the University of Sydney and a post graduate masters degree in Environmental Studies from Macquarie University. Although his affidavit is detailed and includes a number of test results, his conclusions may be expressed as follows: (i)it is very unlikely that any risk to the environment exists at water fluoridation levels of 1mg/L; (ii)fluoride occurs naturally in the aquatic environment, especially in sea water, where the average concentration is 1.3mg/L with fluoride exhibiting acute toxicity at levels well above the 1mg/L concentration and chronic effect levels also above that concentration; (iii)fluoride naturally accumulates in the skeletal structures of marine fish and invertebrates with elevated levels in some marine organisms not exposed to anthropogenic fluoride, with the consequence that fluoridation of the water supply would result in negligible risk from ecological bioaccumulation of fluoride in aquatic organisms; (iv)terrestrial wildlife would not be adversely affected by drinking fluoridated water at the applicable level; (v)environmental factors in waters reduce the toxicity of fluoride so that there is very little likelihood of exposure at elevated levels of aquatic life in the Eurobodalla District. 169There was no evidence led by the Applicant to counter that given by Dr Chapman. His cross-examination, essentially directed to the possibility of heavy metals in the water supply, given the content of the fluoridating agent, did not undermine any of the evidence that he gave in chief. To the extent that he was taken to water quality guidelines, his evidence was that such heavy metals as were identified would be below drinking water guidelines. 170I then return to the evidence given by Drs Spencer and Harms. Overall I prefer the evidence of Dr Spencer essentially for the following reasons: (i)his statistical analysis and comparison for the purpose of identifying the effects of fluoridation appeared to be sound; (ii)Dr Harms acknowledged that apart from some academic writers whose opinions were challenged, those expressed by Dr Harms did not accord with the Commonwealth, State and many international agencies; (iii)those opinions held by Dr Harms seemed to be informed, at least in some measure, by an anxiety to be heard on those opinions rather than to address, in a measured way, the material that supported the policies adopted by authorities implementing fluoridation of public water supplies; (iv)the objectivity of Dr Harms was in part diminished by his reference to a news release from the United States Department of Health and EPA on January 2011 as a warning directed to fluoridation, implying support for the thesis advanced by Dr Harms, when a consideration of the news release in its entirety indicated that those agencies supported the continuation of fluoridation of public water supplies because of its benefits but proposed a reduction in the recommended dosage level for fluoride, a proposal that has not yet been adopted; (v)while bioaccumulation of fluoride within the human body was accepted as occurring within bones and, in some measure, in the pineal gland, the assertion that this led to health problems as a result of fluoride introduced into the public water supply systems at the dosage level intended for Eurobodalla was not accepted as being correct by Dr Brown whose evidence in this regard was not contradicted. 171Importantly, acceptance of the beneficial effect of fluoridation does not equate to acceptance that it has or is likely to have a significant affect upon the environment. While it certainly reflects a change in the chemical constituents of water hitherto reticulated in Eurobodalla, so also does the general treatment of water though the new Plant which, it will be remembered, commenced operation sometime before the fluoride dosing facility was installed and operated. While the health benefit may be seen to be important, I do not accept that the provisions of s 112(1) are engaged such that "the activity" could not be carried out without the Council first obtaining and considering an environmental impact statement conformably with that subsection. 172The Applicant has not established that the Council has acted in breach of s 112 of the EPA Act.

Local Government Act issue 173The Council accepts that the construction of the Plant involved the construction of a "water treatment works" within the meaning of s 60 of the Local Government Act. It contests that the installation of the fluoride dosing facility within the Plant involves the construction or extension of those works. 174The dosing facility was installed within the structures that were erected as part of the Plant. It is not contended by the Applicant that s 60 approval was not obtained for the Plant. 175As an internal addition of equipment was involved, no further "construction" was required to the existing water treatment works. While the necessary equipment and elements of the dosing facility were installed in the space set aside for it within the Plant, that does not suggest to me that what was involved was the "construction" of water treatment works. 176The Applicant submits that the installation of the facility "extends" the water treatment works. Although it offers no explanation of the word "extend", it implies that the addition of a dosing facility enlarges the existing water treatment works. 177I do not think that the provision was intended to operate in the manner for which the Applicant contends. The circumstance that the approval of the Minister for Land and Water Conservation was required (now the Minister for Primary Industries) suggests that the need for approval is to ensure that the State body responsible for the utilisation of water and the operation of water systems is assessed when those water systems may be impacted by water treatment works. Affect upon the use and flow of water, and perhaps its quality, is at the heart of such a requirement. 178The fluoride dosing facility does not affect water flow or water utilisation. As I have said, I understand an extension that requires approval is one that has the potential to impact upon the availability of water. 179Although not determinative of the question, I note that the preliminary hazard analysis annexed to and forming part of the REF refers at paragraph 4.1.2 to the fluoridation of "treated water" at the Plant. Further, the drinking water treatment chemicals chapter of the Australian Drinking Water Guidelines prepared by the NHMRC state at paragraph 8.4.1 that "fluoridation of drinking water is not a water treatment process ... ". Finally, in a report prepared for the Council at its meeting on 23 November 2010, the Acting Director Water and Waste described the fluoridation component of the water supply project "as an additional process that is not required for the provision of safe drinking water to the community and therefore successful commissioning can be achieved without including the fluoridation system", thereby indicating a distinction between the treatment process and the addition of the fluoridating agent. 180For all these reasons, I am not persuaded that an approval under s 60 of the Local Government Act was required to install and operate the dosing facility. If I am wrong in so concluding, I do not accept the submission made on behalf of the Council that, in any event, the provisions of s 6 of the Fluoridation Act "cover the field", thereby avoiding the necessity for such approval. I do not discern that the provisions of s 60 of the Local Government Act and s 6 of the Fluoridation Act are inconsistent so that the opening words of s 6(1) would cause the Fluoridation Act to prevail.

Conclusion 181For all these reasons I have concluded that the Applicant has not established the breaches that are claimed. As a consequence, I make the following orders: (1)The Applicant's amended summons is dismissed. (2)Costs are reserved. (3)Exhibits may be returned. Annexure A Eurobodalla Fluoride Issues Inc. v Eurobodalla Shire Council 11/41030 Issues addressed in tendered documents Issue Exhibit reference (i) Expected and potential biological effects on humans who ingest fluoridated water Ex A1; Tabs 1, 2, 5, 6, 14, 17, 19, 20, 21, 25, 27, 33, 37, 38, 39, 40, 43, 47, 49 Ex A2; Tabs 4, 6, 10-12, 21 Ex A4; Tabs 5, 9, 14, 15, 19, 23, 36 Ex A5; Tabs 1, 5, 7, 12, 15, 16, 17, 19 (ii) Impacts of fluoridation on persons who may be more sensitive, including bottle fed babies, persons using other fluoride medication, persons with relevant illnesses and pregnant women Ex A1; Tabs 1, 2, 6, 7, 12, 15, 17, 18, 27, 29, 30, 31, 38, 43, 45, 46, 47 Ex A4; Tabs 13, 15 Ex A5; Tabs 7 (iii) Relative risks and benefits associated with different dosing methods and different fluorine compounds Ex A1; Tabs 4, 6, 20, 46, 49 Ex A4; Tabs 5, 13 Ex A5; Tabs 1, 4, 5, 6, 7, 51 (iv) Expected potential impacts of chemicals which accompany the fluorine compounds Ex A1; Tabs 1, 2, 5, 8, 17, 27, 36, 39, 40, 43 Ex A5; Tabs 14, 55 (v) The incidence and effects of fluorosis Ex A1; Tabs 1, 2, 5, 7, 14, 17, 20, 27, 30, 41, 48 Ex A2; Tab 4 Ex A4; Tabs 15, 19 Ex A5; Tabs 19, 47 (vi) The risk and effects of an overdose of fluorine Ex A1; Tabs 7, 14, 17, 19, 20, 43, 46 Ex A4; Tab 19 (vii) Alternatives to the fluoride dosing facility Ex A1; Tabs 4, 5, 18, 20, 37 Ex A2; Tab 7 Ex A5; Tabs 5, 6, 7, 51 (viii) Bioaccumulation Ex A1; Tabs 1, 14 Ex A4; Tab 19 (ix) Available relevant peer reviewed academic literature Ex A2; Tabs 2 (the Code), 3, 4, 5, 6

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2014