45 In Agar v Hyde (2000) 201 CLR 552 at 575-576, the High Court (Gaudron, McHugh, Gummow and Hayne JJ) held that the test for summary dismissal while expressed in many ways required a high degree of certainty about the outcome. Gleeson CJ at 560 and Callinan J at 593 similarly agreed.
46 A matter can be summarily dismissed even where lengthy argument is necessary, see General Steel at 129. The parties agree that the Applicants' claim must be taken at its highest when considering the arguments on the Respondent's Notice of Motion. The parties agreed a statement of agreed facts for the purposes of the hearing on the motion set out above at par 6. The Respondent's counsel advised that these facts would not be agreed if there was a substantive hearing and that all facts would be in issue. The Respondent addressed the statutory framework in the POEO Act for environmental protection licences and the relevant conditions of the Respondent's licence at length. The Respondent has identified its arguments in detail, essentially as it would present at a final hearing of the issues raised by the APOC. The Applicants have stated their case relatively simply. They have not addressed all of the matters raised by the Respondent's submissions in chief and in reply. Assessing the merits of the Applicants' argument taking the case at its highest in the face of the comprehensive submissions of the Respondent has been difficult.
47 The breach of a licence is a criminal offence under the POEO Act. The declaration sought that the Respondent is disposing of waste without lawful authority, a criminal offence under s 115, is being civilly enforced. According to the Applicants' counsel, the Applicants seek a declaration that a crime is being committed and the Applicants have the onus of proving the crime is taking place, accepting the Briginshaw test. The onus would then fall on the Respondent to establish there is lawful authority. As submitted by the Respondent the meaning of the statute will not alter according to whether there is a civil or criminal context.
Lawful authority
48 The Applicants argue that the Respondent does not have lawful authority to emit unlimited amounts of CO2 from Bayswater Power Station under its licence. Its submissions emphasise that the authority conferred concerns the right to do an act, see Jordan CJ in Ex parte Johnson; re MacMillan (1946) 47 SR (NSW) 16 referred to in Hardt at [70]. Section 43 of the POEO Act states that an environment protection licence can be issued for scheduled premises. Such a licence has been issued in relation to the operation of the Bayswater Power Station. The occupier of premises is guilty of an offence under s 48 if a scheduled activity is carried out unless that person has a licence. The imposition of licence conditions is provided for in s 63(1). Section 63(2) states that a condition cannot be attached to a licence if compliance would result in a breach of a requirement made by or under the Act. It is an offence not to comply with a licence condition, s 64. The types of conditions which may be imposed are identified in s 66(1)(ii) in relation to monitoring of discharge from premises and the retention of recording data.
49 Condition A1.2 of the licence specifies the activities authorised by the licence according to their scheduled activity classification, and include the generation of electrical power from coal on a scale of generation greater than 4000Gwh. Particular points of discharge to air, inter alia, are specified in condition P1.1 for monitoring and/or the setting of limits for the emission of pollutants. Condition L3.4 specifies limits on identified air pollutants discharging from specific points. CO2 is not referred to in that condition. Several different emissions, including CO2, are required to be monitored under conditions M1.1 and M2 using specified methods from several specified points.
50 A licence is a statutory regulatory instrument, a breach of which can give rise to a criminal offence. It must be construed strictly, in accordance with the usual rules of statutory construction in light of the objects and purposes of the Act it is made under, see Gillard J in Protean (Holdings) Ltd v Environment Protection Authority [1977] VR 51 at 55; see also Bignold J in Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd (1996) 92 LGERA 101 at 111 considering the Pollution Control Act 1970 (repealed), a predecessor to the POEO Act.
51 Project Blue Sky, relied on by the Respondent, states at 381:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute [45]. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos [47], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed [48].
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals [49]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions [50]. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" [51]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision [52]. In The Commonwealth v Baume [53] Griffith CJ cited R v Berchet [54] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
52 These principles should be applied to the construction of the Respondent's licence. I accept the submission of the Respondent that the correct understanding of the effect of the licence depends upon the proper construction of the terms of the licence as a whole. This must be determined as a matter of substance and in context, that is, having regard to the statutory context (the power pursuant to which it was granted and conditions imposed) and the context of all the terms and conditions of the licence itself; see for example Genkem at 41. The authority conferred by a licence is that expressly conferred and that which is necessarily implied upon the proper construction of the licence.
53 As submitted by the Respondent, the licence expressly authorises the carrying out of electrical power generation from coal in condition A1.2. The licence provides authority to undertake the scheduled activity of electricity generation, on the conditions specified. The Applicants are correct in stating that the licence does not in explicit terms state that CO2 can be emitted as it is not one of the pollutants referred to in limit condition L3.1. CO2 is referred to in condition M1.1 as a substance which the licence requires to be monitored at specified points (stacks). Monitoring of CO2 can only occur if CO2 is being emitted from those stacks.
54 The Respondent argues persuasively that where there is a necessary process for the principal activity the subject of the licence, the licence should be interpreted as permitting that activity. Several references to decisions where that principle has been stated to apply in other contexts are referred to in par 25, including Egan v Willis, Fenton, and Metro Transport. Such a principle must also logically apply in this case. The scheduled activity licensed by the EPA is the generation of electricity by burning coal. That activity has occurred since the establishment of the power station in 1996 according to par 9 in the SOAF. The SOAF also states that CO2 is produced when coal is burned. There is no doubt that the emission of CO2 is essential to the generation of electricity by this coal fired power station.
55 I agree with the Respondent's submission that the licence would have no sensible operation if the licence is construed as not allowing the emission of CO2. Paragraphs 22 and 23 above identify the Respondent's submissions as to why the licence should be so interpreted given the specific references to CO2. The Respondent's construction of the licence gives effect to its purpose and, to the extent that is necessary, "harmonises" the terms of the licence, as referred to in Project Blue Sky. These arguments are compelling and are not addressed by the Applicants' case.
56 The Applicants argue that no provision of the licence specifies that CO2 may be emitted so that the emission of CO2 is unauthorised. General authority to carry out an activity is not sufficient to authorise specific acts which result in the emission of waste not specifically authorised by the licence. Elcom was relied on to support this argument. In Elcom the statutory authority was prosecuted for an alleged offence of polluting waters contrary to s 16(1) of the Clean Waters Act 1970 (repealed). The pollution occurred from an oil spillage into Lake Liddell from the Hunter Valley gas turbine station owned by Elcom. The gas turbine station was part of a large electricity producing complex which included the Liddell Power Station and the Bayswater Power Station. One of the defences raised by Elcom was that its licences under the relevant pollution control legislation then in force permitted the conduct which had given rise to the offence. At the time of the offence Elcom held three potentially relevant licences: one for Liddell Power station issued under the State Pollution Control Commission Act (1970) (repealed), one for the Bayswater Power Station and one for the gas turbine station. The latter contained no condition permitting the pollution of any waters. Pollution of waters is not an offence if a person or entity pollutes waters in compliance with a pollution control licence. Gleeson CJ (Carruthers and Smart JJ concurring) held that none of the licences permitted pollution by the spillage of oil. The passage relied on by the Applicants at 500 is that:
None of the three potentially relevant licences in terms permitted what occurred in the present case. The licence in respect of the gas turbine station simply prohibited pollution of any waters. The licences in respect of both the Bayswater and Liddell Power Stations prohibited pollution of waters except as may be provided in some other condition of the relevant licence. Only the Bayswater Power Station licence contained a condition on the subject matter
of oil pollution, and it did not relate to discharges of oil in the circumstances of this case.
57 The licences considered in Elcom did not make any specific provision for the release or spillage of oil into Lake Liddell and it was not an essential part of the operation of the gas turbine station that oil be released or spilled. I cannot agree with the Applicants' submissions that the principles in Elcom apply to the licence held by the Respondent because of the important components of that licence referred to in the Respondent's submissions. Contrary to the Applicants' submission that a similar submission to that put by the Respondent in this case was rejected by Gleeson CJ at 500, Elcom does not address the quite different provisions of the licence held by the Respondent or the arguments of the Respondent based on those licence provisions. The EPA as the issuing authority for the Respondent's licence must have been and must be aware that CO2 is emitted by the Bayswater Power Station because the power station could not otherwise operate. That knowledge is reflected, inter alia, in licence provisions which require the monitoring of CO2 emissions. The EPA's decision to allow the discharge of CO2 by the Respondent from the Bayswater Power Station under the licence is not the focus of this litigation and it is not a party in these proceedings. It is not correct to say that the licence does not deal with CO2 in such a way that there is no lawful authority to emit CO2 provided under it.
58 The issues arising in relation to the construction of the Respondent's licence were not addressed by Elcom. In the absence of any further response from the Applicants to the Respondent's submissions, the Respondent has provided several compelling reasons to refute this part of the Applicants' APOC. I consider at a final hearing on this issue the Applicants are unlikely to succeed.
Whether CO 2 is waste under the licence
59 The other contention of the Applicants addressed by the Respondent's motion for summary dismissal is the argument that CO2 is waste under condition L.5 of the licence and its discharge is not authorised on this basis. That contention is set out above in par 39-40. Condition L5 states that the licence holder must not dispose of waste generated outside the premises to be received at the premises for storage or treatment or any waste generated at the premises to be disposed of at the premises unless the licence permits it. Waste conditions L5.1, L5.2 and L5.3 are set out above in par 15.
60 The Applicants argue that because CO2 is not contained in the substances identified as waste in condition L5.3, it is waste. That CO2 is referred to as a substance to be monitored under the monitoring conditions in section 5 of the licence does not mean it is not a waste under condition L5. The Respondent has provided cogent reasons for why the licence should not be interpreted in the way contended by the Applicants. These arguments are identified at par 27-30 and it is unnecessary to set them out again here. They provide a complete answer to this aspect of the Applicants' case. Taking the Applicants' case at its highest I consider it is very unlikely to succeed on this argument also.
61 At a final hearing the Respondent bears the onus of proof of demonstrating that it has lawful authority to do what it seeks to do by virtue of s 256 of the POEO Act. It is very likely that it would be able to do so.
Additional grounds in APOC (par 54A, 54B)
62 As identified in the additional par 54A and par 54B, the Applicants seek to argue in the alternative that if the Respondent has lawful authority to emit CO2 it is only authorised to emit CO2 in a way that has reasonable regard and care for people and the environment and that such a limitation is to be implied in the licence. It argues that as a matter of fact the Respondent has failed to undertake its activities in accordance with this requirement. According to the Applicants, a general limitation must be complied with under the general terms of the licence. The implied limitation is said to arise from principles articulated in Van Son.
63 Van Son was an action for damages commenced in the Equity Division of the Supreme Court of NSW due to an interference by the defendant with the plaintiff's riparian rights to use the water of a specified creek in an unpolluted condition. The damage to the creek was found to result from the defendant's forestry operations. The defendant held a pollution licence issued under the Pollution Control Act (1970)(repealed). As part of the reasoning of Cohen J at 129-130, his Honour held that the licence did not authorise work to be done in a manner which was unreasonable and caused damage to neighbours.