Consideration
32The scope of judicial review in reviewing legal errors in administrative decision-making includes a failure to comply with mandatory statutory provisions. Recently in McGinn v Ashfield Council [2012] NSWCA 238 McColl JA (Sackville JA agreeing) stated at [16]:
judicial review ... "ordinarily does not extend to findings of fact as such" (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (at 341)) or to "the merits of administrative action, to the extent that they can be distinguished from legality": Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 (at 36) per Brennan J.
33These judicial review proceedings raise issues of statutory construction given the nature of the Applicant's challenge to a statement relating to compliance in the DG's report produced pursuant to Pt 3A of the EPA Act. The principles applicable to statutory construction have received much judicial consideration. Section 33 of the Interpretation Act 1987 requires a construction which promotes the purpose or object of an Act over one which would not. In Project Blue Sky Inc v Australian Broadcasting Tribunal [1998] HCA 28; (1998) 194 CLR 355 McHugh, Gummow, Kirby and Hayne JJ stated at 381 - 382 that 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", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision". See also IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; and Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12] - [13] per Allsop P.
34The Applicant's approach was said to promote transparency and accountability in decision-making, identified as an objective in s 5(c) of the EPA Act and the mandatory public consultation in s 75H, and better environmental protection outcomes because departures from the EARs are required to be identified and considered. Ultimately the plain meaning, if discernible, of the words of the statute must be applied, mindful of this context: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305 per Gibbs CJ, at 310 per Stephen J, at 320 per Mason and Wilson JJ and at 336 per Aicken J (in dissent but not on this point).
35The Applicant stressed the importance in the statutory scheme of the statement relating to compliance in light of s 75J(2)(a) and I do not consider that was a matter in dispute. The DG's report to the Minister must include certain documents and a statement relating to compliance for the purposes of the Minister considering an application for approval of a project (s 75I(2)). The report is a precondition to the exercise of the Minister's power of approval given s 75J(1)(b) and in that respect is a mandatory relevant consideration. The Applicant argues that a sentence in section 3.5 of the DG's report, which it identifies as the purported statement relating to compliance, does not comply with s 75I(2)(g). If correct, s 75J(2)(a) was not complied with by the Minister when project approval was granted. No form for a statement relating to compliance is specified in the EPA Act. The Applicant criticised the wording of the sentence in section 3.5 of the DG's report because it refers to the EARs issued on 4 July 2009 being "addressed", a word which appears in s 75H(2) but not s 75I(2)(g) which refers to compliance.
36As the Minister submitted the Applicant appeared to be proposing that the only statement satisfying s 75I(2)(g) is one which states in terms that there has or has not been compliance with the EARs. That is formalistic and not consistent with the broad meaning of "relating to" compliance, see Drake-Brockman at [100] (par 15 above). While the Applicant rejected that submission as not nuanced enough it was difficult to perceive what the Applicant thought would suffice other than that the word comply had to be used. It firstly said what was necessary would depend on the facts of each case but its counsel also submitted that, by inference from the statutory scheme, a statement had to state whether or not the EARs had been complied with. That submission is at odds with Drake-Brockman at [109] in particular and not supported by the changes implemented under the Amendment Act.
37The Applicant also submitted that where there is a statement relating to compliance it is not appropriate that any additional material in the DG's report be considered to determine whether s 75I(2)(g) has been satisfied. Nothing in the statute directs the manner of consideration of the DG's report so that the Applicant's construction, if correct, must arise by inference from the statutory context. That submission is also contrary to the findings in Drake-Brockman.
38The parties' submissions required close consideration of Drake-Brockman, extracted above at par 16. The facts in Drake-Brockman differed from this case in that there was no identifiable express statement relating to compliance with s 75I(2)(g) in the DG's report. In Drake-Brockman the applicant submitted that the statement required certification of compliance. The Applicant sought to distinguish Drake-Brockman on the basis that where there is a statement in one location identifiable for the purposes of s 75I(2)(g), it did not suggest a wider inquiry ought to be undertaken to determine whether the remainder of the report or other documents or parts of documents might remedy any deficiency in the statement so provided. The Applicant embraced part of Jagot J's reasoning at [106] while criticising other parts.
39Drake-Brockman considered extensively and comprehensively the statutory construction of "a statement relating to compliance" referred to in s 75I(2)(g) and the reasoning applies to the facts of this case. Unless I decide that decision is wrong, it is determinative as against the Applicant's first ground of judicial review. As the various authorities referred to in the parties' submissions identify, summarised usefully in Rivers SOS at [90], the principles of judicial comity require that I should follow the earlier decision of another judge of this Court, although not bound by it, unless it appears on close consideration to be wrong.
40The Second Respondent's counsel identified three findings by Jagot J at [107] - [108], [109] and [110] which are all part of the ratio of the judgment: see Monzie at [6]. Given the facts of the case before me I need only consider [107] - [108] and [109]. The Respondents relied on Jagot J's reasoning at [94] - [95] where her Honour considered that there was no requirement that the DG prepare the statement in s 75I(2)(g), the only obligation on the DG being to include the statement in the report. In [95] her Honour considered there was no obligation imposed on the DG to form an opinion about the matter nominated in that subsection. I need not consider her Honour's finding in [110], based on [94] - [95], that the statement relating to compliance in s 75I(2)(g) can be that of a third party as that does not arise on the facts in this case.
41Of most relevance to the facts of this case is her Honour's rejection of the applicant's submission that there must be a single statement that there has or has not been compliance with the EARs in [99] for reasons canvassed in [100] - [105], with her conclusion in [106]. I have already applied her Honour's reasoning in [100] concerning "relating to" at par 36. Considering the substance of the statement in [101], her Honour identified that the applicant's submissions assumed that "the environmental assessment requirements under this Division" were the DG's EARs under s 75F(2) (unlike the Applicant in this case which raised the time to which the statement must be directed as an issue). The EARs would consist of issues the DG required the proponent to address in its EA. Compliance with requirements would usually be a complex evaluative exercise and be contrary to the certification for which the applicant contended given this broader context ([101]). The requirement for a statement is also found elsewhere in the EPA Act and Environmental Planning and Assessment Regulation 2000, suggesting that a statement is not necessarily as confined in the context of the EPA Act as the applicant argued ([102]). The singular includes the plural applying s 8(b) of the Interpretation Act, applied by the Court of Appeal in relation to a conservation plan in Chisholm v Pittwater Council [2001] NSWCA 104, noted by Jagot J in [103]. The ordinary meaning of "statement" extends beyond the form of certification proposed by the applicant ([103]). The applicant's submissions lead to a highly artificial result, particularly as the applicant conceded that a single additional sentence that the project did or did not comply with EARs would have satisfied s 75I(2)(g) ([105]).
42In [106] her Honour held that s 75I(2)(g) required a written communication relating to compliance. The written communication could be constituted by a document or series of documents provided that it was "'readily discernible as a single entity'" and "'not a mere hodgepodge'". The report itself could be the relevant communication. In [107] her Honour held that if s 75I(2)(g) was concerned solely with the DG's EARs then the DG's report satisfied s 75I(2)(g) in that case. At [108] the DG held that statements in the DG's report were a readily discernible written statement relating to compliance with the DG's EARs for that project. In [109] her Honour found that the DG's statement confirming that the EA was adequate for the purposes of exhibition under s 75H(2) and (3) is also a statement relating to compliance for the purposes of s 75I(2)(g). Further, s 75I(2)(g) does not require a statement of whether or not the project complies with the requirements.
43Applying her Honour's reasoning in [100] - [106] and [108], in which I can find no discernible error, the Applicant's approach to the construction and application of s 75I(2)(g) is not correct. As the Applicant accepted (see par 18 above) whether a proponent's assessment complies with the EARs is a complex evaluative exercise as Jagot J recognised at [101]. When other parts of the DG's report are also considered there was such an exercise undertaken. When additional material in the DG's report in the remainder of sections 3, 5 and 6 is considered there are numerous statements relating to compliance with the EARs.
44Extracts from those sections are set out above at par 13 in relation to greenhouse gas, air quality, operational noise, and water quality and aquatic ecology. Section 5.1 "Greenhouse Gas" states that the Department reviewed the EA, an independent review of the greenhouse gas assessment, the proponent's response to the independent review and submissions received. The Department considered that the assessment undertaken was sufficient to identify the likely greenhouse gas emissions resulting from the proposal. Section 5.2 "Air Quality" states the Department was satisfied that the proponent undertook an assessment consistent with the Approved Methods for the Modelling and Assessment of Air Pollutants in NSW (DECC 2005), as the air quality EAR required be done. Section 5.3 "Operational Noise" states that the Department reviewed the proponent's noise impact assessment and considered it provided an adequate level of assessment. Section 5.4 "Water Quality and Aquatic Ecology" states that the Department reviewed the EA, the submissions received and the proponent's response and considered that an ongoing monitoring program of water quality was needed. The concluding section, section 6, states that the Department considered that the proponent undertook an adequate and appropriate level of environmental assessment.
45The Applicant submitted generally that the EARs required standards to be met and specific measures to be in existence. The standards required in the EARs relate largely to the method of assessment required to be used. As can be seen from the EARs for greenhouse gas, air quality and noise and vibration set out above at par 12, the EARs required the assessment to be conducted in accordance with a specified methodology and identified matters that had to be included. For water cycle management the EAR specified matters which had to be assessed. The standards relate to the nature of the environmental assessment to be undertaken. The Department's responses to the EA, that these assessments were appropriate and adequate, are statements relating to compliance with the EARs. Beyond making a general submission, whether the EARs required specific measures to be in existence was not explored by the Applicant in relation to this ground. That is considered in relation to the second ground of review below, water disposal only.
46The Applicant criticises Drake-Brockman because that approach was said to deprive the requirement for a statement relating to compliance of meaning in the statutory context. Applying the reasoning in Drake-Brockman, the Respondents' submissions that the DG's report contains statements relating to compliance with the EARs issued under s 75F(3) of the EPA Act are correct. That conclusion does not deprive the requirement in s 75I(2)(g) of meaning. To limit consideration of whether the DG's report provides the required statement to a single sentence is artificial, does not arise by inference from the statutory scheme and does not reflect the statutory provision of a statement relating to compliance.
47Because there was no single sentence in Drake-Brockman, indeed that was the criticism mounted in that case, Jagot J did not have to directly consider the issue here of whether the single sentence in section 3.5, which refers to "address", satisfies s 75I(2)(g) as the Respondents submitted. Her Honour's reasoning in [109] in particular considered that other statements in the DG's report before her Honour satisfied that requirement given the wide meaning of "relating to". Her Honour specifically held that s 75I(2)(g) does not require a statement as to whether or not the project complies with the EARs. That reasoning suggests that the Applicant's argument that "address" is not adequate is not correct given the statutory scheme. This conclusion is supported by the Minister's submissions set out above at par 25 and 26. My observations on this aspect of the case are necessarily obiter given my finding in the previous paragraph that the whole of the DG's report should be considered.
48The Applicant submitted that its interpretation was supported by the changes effected to s 75I and s 75J by the Amendment Act. These changes removed a more onerous requirement in s 75J(1)(b). The Applicant submitted that "a statement relating to compliance" was intended to provide an important safeguard against the loss of the stricter requirement that the EA comply with the EARs before the application for approval is determined by the Minister. This construction was said to promote transparency and accountability. These submissions can be accepted but they do not necessarily lead to adoption of the Applicant's construction. As the Respondents submitted, the Applicant's construction attempts to continue a similar regime to that which existed before the amendments were made. The Amendment Act changes to s 75I and 75J confirm the Respondents' approach to construction.
49I do not need to determine the Second Respondent's submission that sections of the EA annexed to the DG's report also constituted the requisite statement(s) made in reliance on [94] - [95] of Drake-Brockman.