REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

LEGISLATION - interpretation or application of statutory provision

Interpretation of sections 33B (1) and 33B(2) Environment Protection Act 1970 - meaning of "interests" in section 5 Victorian Civil and Administrative Act 1998 and section 33B(1) - consideration of recent Supreme Court cases regarding what constitutes a special interest by a person or group to establish standing in environmental and similar cases

The issues in this case concern an applicant's standing pursuant to section 33B(1) of the Environment Protection Act 1970 to review a decision of the EPA to issue a works approval and who may rely upon the grounds specified in section 33B(2) of the Act.

The Supreme Court has recently considered the issue of standing by applicants in environmental and similar cases in Environment East Gippsland Inc v VicForests [2010] VSC 335 and Thirteenth Beach Coast Watch Inc v Environment Protection Authority and anor [2009] VSC 53. In the Environment East Gippsland Inc case, Justice Osborn reviewed the authorities on standing and referred to comments made by Sackville J in North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492, which identified the following principles:

• A plaintiff must demonstrate a 'special interest' in the subject matter of the action. A 'mere intellectual or emotional concern' for the preservation of the environment is not enough to constitute such an interest. The asserted interest 'must go beyond that of members of the public in upholding the law ... and must involve more than genuinely held convictions'.
• A plaintiff may be able to demonstrate a special interest in the preservation of a particular environment. If it does so an intellectual or emotional concern is no disqualification from standing to sue.
• An allegation of non-compliance with a statutory requirement or an administrative procedure is not enough of itself to confer standing.
• The fact that a person may have commented on environmental aspects of a proposal as part of an environmental assessment process does not of itself confer standing to complain of a decision based on that process.
• An organisation does not demonstrate a special interest simply by formulating objects that demonstrate an interest in and commitment to the preservation of the physical environment.

Determining whether a person has standing will always depend upon the facts and circumstances in each case. However, there is no basis for suggesting that the interests that must be affected in order to establish standing under section 33B(1) are any different to the interests that are referred to in section 33B(2)(a). Equally, a person who seeks to rely upon the ground in section 33B(2)(b) must still establish that they are a person whose interests are affected by the decision.

In practice, it will tend to be individuals or corporations who are most likely to rely upon the ground in section 33B(2)(a) and, although there is nothing to prevent them from relying on the ground in section 33B(2)(b), this ground is more likely to be relied upon by groups or associations.

Sections 33B(1) and 33B(2) Environment Protection Act 1970 - standing to make application for review - application summarily dismissed due to lack of standing.

Linaker v Greater Geelong CC & Ors (includes Summary) (Red Dot) [2010] VCAT 1806

1. Pursuant to section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998, application P1908/2010 is struck out.
2. Pursuant to section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998, application P2837/2010 is summarily dismissed.

Ms Juliet Forsyth of counsel, instructed by Maddocks

Mr Dickie, solicitor, Office of Solicitor to Environment Protection Authority

Application P1908/2010 - application under section 82 of the Planning and Environment Act 1987

Application P2837/2010 - application under section 33B of the Environment Protection Act 1970.

• Industrial 1 Zone
• Design and Development Overlay Schedule 20 (DDO20)

• Clauses 33.01-1, 33.01-4, 36.02-2, 36.02-1 - use and development of the land for the purpose of a utility installation
• Clause 52.29 - construction of a new vehicle access to road in a Road Zone Category 1
• Clause 52.06 - reduction of car parking requirements

1. These two proceedings concern a new waste water treatment plant to be constructed by Barwon Water, known as the Northern Water Treatment Plant Project (the Northern Water Plant) in Corio. Mr Linaker has lodged an application for review of the council's decision to grant a planning permit and the EPA's decision to issue a works approval.
2. Mr Linaker lives in Ocean Grove, approximately 23 kilometres from the subject land. Barwon Water submits that Mr Linaker has no standing to make these applications for review. The purpose of this Practice Day hearing was to consider an application by Barwon Water to strike out or summarily dismiss both applications for review.
3. At the conclusion of the hearing, I gave an oral decision to strike out application P1908/2010 (the permit application) because Mr Linaker's statement of grounds relate solely to buildings and works, which are exempt from third party notice and review rights.
4. I reserved my decision with respect to application P2837/2010 (the works approval). I have now decided that the application should be summarily dismissed because Mr Linaker lacks standing under the provisions of the Environment Protection Act 1970. I will set out my reasons for this decision.

1. The Northern Water Plant is a project of significance.
2. It involves two lots of works on separate land. The main treatment and processing plant is proposed to be constructed on land at 240-268 Station Street, Corio (Station Street land). The Corio Street West Pump Station Upgrade is also part of the proposal, to be located on land at 27-49 Goldsworthy Road, Corio (Goldsworthy Road land).
3. Key features of the Northern Water Plant (on the Station Street land) are as follows:

1. it will treat a combination of domestic sewerage from the catchments of Corio West and Oyster Cove and trade waste from the Shell refinery to Class A water; 2. it has an operating capacity of 7.9 ML/d;

1. it will return recycled water to Shell for use in its refinery, and to Stead Park to the west of the Station Street land for irrigation of the sports ground;

1. a high saline by-product will then be discharged into the existing sewerage system for treatment at the Black Rock Treatment Plant; and 2. it incorporates a biological secondary treatment system, followed by membrane ultrafiltration and reverse osmosis tertiary treatment.
2. The Shell refinery currently uses a significant amount of potable water for its boilers which the Northern Water Plant will substitute to fit for purpose class A recycled water. This will result in an immediate reduction in potable water usage equivalent to approximately 5% of Geelong's drinking water usage (approximately 2000 million litres a year). According to Barwon Water, the project has other major advantages which include:

1. the avoidance of major public disruption and the cost of sewerage upgrades through Geelong by taking excess loads of the sewerage system; 2. the ability to irrigate community facilitate such as sporting grounds with high quality recycled water; and

1. a 10% reduction in ocean discharges at the Black Rock water reclamation plant.
2. The overall cost of the project is in the vicinity of $90 million and contributions to the project are being made by the Federal Government ($20 million), the State Government ($9.2 million), Shell ($44 million) and Barwon Water ($16.1 million).
3. The proposal requires two relevant approvals - a planning permit and an EPA works approval.

1. Mr Linaker has submitted a range of documents both with his applications and subsequently in response to requests by Barwon Water for further and better particulars. However, they are very confusing. It is very difficult to comprehend exactly what Mr Linaker is objecting to or his reasons.
2. Nevertheless, in broad terms, he says that he generally approves of the plant, except for certain details. The details relate to the design of the plant, aspects of which Mr Linaker says are flawed. His primary concern appears to be with "upset conditions". He considers that all storages should be covered and that an emergency storage should be provided to deal with an upset load in times of wet weather flow conditions. His concern is that in such "upset" events, there will be a discharge of untreated water into the sewerage system.
3. The outcome that Mr Linaker seeks is an order for Barwon Water to review the design of the Northern Water Plant. Mr Linaker participated in the public consultation process involved with the works approval[1] where he raised many of the issues referenced in his statements of grounds. He says he urged the EPA to require Barwon Water to redesign the proposal during the consultation process, but this has not occurred.

1. Under the Environment Protection Act 1970, a person may only make an application to review an EPA decision to issue a works approval if that person's "interests are affected" by the decision. Thus for Mr Linaker to have standing to review the works approval, he must establish that his interests are affected, otherwise the Tribunal does not have jurisdiction to hear the application.
2. Section 33B(1) of the Environment Protection Act 1970 provides:

a person whose interests are affected by the decision (other than the applicant or licence holder) may apply to the Tribunal, within 21 days after the decision is made, for review of the decision.

(2) An application for review under subsection (1)(a) is to be based on either or both of the following grounds -

(a) that if the works are completed in accordance with the works approval, the use of the works will result in -

(i) a discharge, emission or deposit of waste to the environment; or

(ii) the reprocessing, treatment, storage, containment, disposal or handling of waste; or

(iii) the reprocessing, treatment, storage, containment, disposal or handling of substances which are a danger or a potential danger to the quality of the environment or any segment of the environment -

which will unreasonably and adversely affect the interests, whether wholly or partly of that person;

(b) that if the works are completed in accordance with the works approval, the use of the works will result in -

(i) a discharge, emission or deposit of waste to the environment; or

(ii) the reprocessing, treatment, storage, containment, disposal or handling of waste; or

(iii) the reprocessing, treatment, storage, containment, disposal or handling of substances which are a danger or a potential danger to the quality of the environment or any segment of the environment -

in the area which will be inconsistent with any relevant Order declared under section 16, 16A or 17A for the area, or if no relevant Orders have been declared under any of those sections for that area, would cause pollution or an environmental hazard.

1. There are two issues to be determined arising from these provisions:
   • Does Mr Linaker have standing pursuant to section 33B(1) ?
   • If so, is his application for review based on either or both of the grounds required by section 33B(2)?

1. In considering the phrase "a person whose interests are affected by the decision", section 5 of the Victorian Civil and Administrative Tribunal Act 1998 is relevant. It provides:

[5] When are a person's interests affected by a decision?

If an enabling enactment provides that a person whose interests are affected by a decision may apply to the Tribunal for review of the decision -

(a) interests means interests of any kind and is not limited to proprietary, economic or financial interests;

(b) the person may apply to the Tribunal whether the person's interests are directly or indirectly affected by the decision and whether or not any other person's interests are also affected by the decision.

1. Both the Tribunal and the Supreme Court have accepted that the word "interests" in section 33B(2) must be given a wide meaning having regard to section 5 of the Victorian Civil and Administrative Tribunal Act 1998.[2] Nevertheless, giving a wide meaning to the term "interests" does not mean that just any person may make an application. There must be something special about the person's interests that sets them apart from the interests of any member of the general public who may be interested in or concerned about the subject matter.
2. The courts have examined the nature of what constitutes a special interest by a person or group to establish standing in environmental and similar cases.
3. In Australian Conservation Foundation v Commonwealth,[3] (the ACF Case) Gibbs J said:

[20] I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, uploading a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.

1. More recently, in Environment East Gippsland Inc v VicForests,[4] Justice Osborn reviewed the authorities on standing and referred to comments made by Sackville J in North Coast Environment Council Inc v Minister for Resources,[5] saying:

[78] Sackville J undertook a survey of the development of the authorities on standing since the ACF Case and identified a number of principles:

• A plaintiff must demonstrate a 'special interest' in the subject matter of the action. A 'mere intellectual or emotional concern' for the preservation of the environment is not enough to constitute such an interest. The asserted interest 'must go beyond that of members of the public in upholding the law ... and must involve more than genuinely held convictions'.
• A plaintiff may be able to demonstrate a special interest in the preservation of a particular environment. If it does so an intellectual or emotional concern is no disqualification from standing to sue.
• An allegation of non-compliance with a statutory requirement or an administrative procedure is not enough of itself to confer standing.
• The fact that a person may have commented on environmental aspects of a proposal as part of an environmental assessment process does not of itself confer standing to complain of a decision based on that process.
• An organisation does not demonstrate a special interest simply by formulating objects that demonstrate an interest in and commitment to the preservation of the physical environment.

1. Determining whether a person has standing will always depend upon the facts and circumstances in each case. However, in my view, there is no basis for suggesting that the interests that must be affected in order to establish standing under section 33B(1) are any different to the interests that are referred to in section 33B(2)(a). Equally, a person who seeks to rely upon the ground in section 33B(2)(b) must still establish that they are a person whose interests are affected by the decision.
2. In practice, it will tend to be individuals or corporations who are most likely to rely upon the ground in section 33B(2)(a) and, although there is nothing to prevent them from relying on the ground in section 33B(2)(b), this ground is more likely to be relied upon by groups or associations.
3. This was the view expressed in Thirteenth Beach Coast Watch Inc, where Justice Cavanough said:

[12] In any event, it seems to me that none of the "interests" on which Coast Watch relied was an interest of a kind covered by s 33B(2)(a). Rather, in my opinion, s 33B(2)(a) should be interpreted as referring to the financial, physical or other like personal interests of the particular applicant as an individual or as a corporation, as the case may be. In my view, it is only interests of that kind which can intelligibly be said to be capable of being "unreasonably and adversely affected" by the "use" of proposed works. By contrast, one would not normally speak of an intellectual, philosophical or emotional interest in the protection of the environment as being something capable of being unreasonably and adversely affected by the use of proposed works, even works to which the person or corporation was opposed on environmental grounds. It would be at least odd to refer to such use as being apt to unreasonably and adversely affect the objects or concerns of the person or corporation.

[13] Further, the provisions of s 33B(2) as a whole indicate very strongly that intellectual, philosophical or emotional concerns about the protection of the environment cannot constitute "interests" for the purposes of s 33B(2)(a). In my view, Parliament has made exhaustive provision in paragraph (b) of s 33B(2) as to the grounds able to be relied upon by a party with no personal stake in the outcome. Such a party is entitled to assert, and to seek to satisfy VCAT, that the use of the approved works will result in one or more of the circumstances specified in s 33B(2)(b). Those circumstances are defined in part by reference to inconsistency with any relevant Order declared under sections 16, 16A or 17A for the area, or, if no relevant orders have been declared under any of those sections for that area, by reference to the causing of "pollution" or an "environmental hazard". Orders under sections 16, 16A and 17A declare "State environment protection policies" (as defined) "waste management policies" (as defined), and "national environment protection measures" (as defined), respectively. "Pollution" and "environmental hazard" are also defined terms. Objectively ascertainable standards of environment protection are thereby set. In my view, Parliament did not intend that those standards could be replaced or raised or otherwise modified by the environmental standards of any person or entity who or which might choose to become an applicant for review.

1. In Thirteenth Beach Coast Watch Inc, the Tribunal had accepted without question that Thirteenth Beach Coast Watch Inc had standing as "a person whose interests are affected by the [EPA's] decision" within the meaning of section 33B(1). However, Justice Cavanough said (without making any decision):

[19] If anything, then, the approach of VCAT was too generous to Coast Watch in this regard. Coast Watch had no interests that were capable of being unreasonably and adversely affected by the proposal. Hence s 33B(2)(a) was inapplicable. Coast Watch should have been confined to endeavouring to make out a case under paragraph (b) of s 33B(2).

1. I have reached the conclusion that Mr Linaker is not a person whose interests are affected by the decision of the EPA to issue a works approval for the Northern Water Plant. He has no financial, physical or other like personal interests that will be affected. He lives 23 kilometres away from the subject land and owns no other property nearby. He has been a party to other proceedings of an environmental nature within the area and may have an intellectual or emotional interest about such matters, but that is insufficient to give him standing. He was a former member of Barwon Water, but that does not give him standing either. He relies upon his engineering and science qualifications as basis for his concern that the Northern Water Plant is poorly designed. But this is no more than an intellectual concern, which also does not constitute a sufficient interest to give standing. Finally, whilst Mr Linaker claims to be "known in the community by repute in matters of public interest", I do not find that this establishes a special interest in the preservation of the environment so far as the Northern Water Plant in Corio is concerned. His intellectual or emotional concern, whilst no doubt genuinely held, does not give rise to the level of special interest in the subject matter of the proceeding necessary to establish standing under section 33B(1).
2. On this basis, I therefore find that Mr Linaker lacks standing to make an application for review under section 33B(1).

Is the application based on the grounds required by section 33B(2)?

1. Because of my finding that Mr Linaker lacks standing under section 33B(1), it is not strictly necessary to make any findings about whether the application is based on either or both of the grounds required by section 33B(2). Nevertheless, Barwon Water requested me to make findings on these matters and I will do so for the sake of completeness.
2. It follows from what I have previously found about Mr Linaker's lack of any financial, physical or other like personal interests proximate to or potentially able to be affected by any of the outcomes detailed in sub paragraphs (i)-(iii) of section 33B(2)(a) that his application cannot be based on this ground. He has not identified any interests that would be unreasonably or adversely affected by any of the potential listed outcomes.
3. In terms of section 33B(2)(b), Mr Linaker has not identified any relevant State Environment Protection Policy or other Order that the use of the works would be inconsistent with. His statement of grounds and other material was not framed at all by reference to the matters required to be the basis for an application for review under section 33B(2)(b).
4. As the Tribunal[6] and the Supreme Court[7] have held, unsupported or unsubstantiated assertions that any of these events may (as opposed to will) arise is insufficient to found a successful application under section 33B(2).
5. I therefore find that the application for review is not based on either of the grounds set out in section 33B(2).

1. I therefore conclude with respect to the application for review about the works approval that the Tribunal has no jurisdiction because Mr Linaker lacks standing under section 33B(1) of the Environment Protection Act 1970 and, in addition, the application is not based on either of the grounds set out in section 33B(2) of the Act.

1. Mr Linaker's objection to the grant of the planning permit for the Northern Water Plant are not based on the use of the subject land, the reduction of car parking requirements or the construction of a new vehicle access to erode in a Road Zone Category 1. Rather, his grounds all relate to the design of the buildings and works on the Station Street land. There are no third party rights of review in respect of the buildings and works component of this part of the proposal. For this reason, Mr Linaker has no right to make an application for review in respect of the Station Street land.
2. The main treatment and processing plant is proposed to be constructed on the Station Street land. The upgrading of the existing Corio West Pumping Station on the Goldsworthy Road land consists of a small switch room above ground and all other works proposed will be below ground. Mr Linaker has not objected to any component of this use or development.
3. For these reasons, the application to review the council's decision to grant a planning permit for the Northern Water Plant is misconceived and will be struck out.
4. I also find that Mr Linaker is not a person who may be affected by the grant of this permit within the meaning of section 57(1) of the Planning and Environment Act 1987. This finding is based on similar reasons to my finding that he lacks standing as a person whose interests may be affected by the decision in the works approval application.

[2] See Brambles Australia Ltd v EPA [1999] VCAT 2176; Thirteenth Beach Coast Watch Inc v Environment Protection Authority and anor [2009] VSC 53 at [8]

[3] [1980] HCA 53; (1980) 146 CLR 493 at 531

[4] [2010] VSC 335

[5] [1994] FCA 1556; (1994) 55 FCR 492

[6] In Terminals Pty Ltd v Greater Geelong CC [2005] VCAT 1988 at [61]; Terminals Pty Ltd v Greater Geelong CC [2006] VCAT 2658 at [11]; Thirteenth Beach Coast Watch Inc v EPA [2008] VCAT 1880 at [12]

[7] Thirteenth Beach Coast Watch Inc v The Environment Protection Authority and anor [2009] VSC 53 at [40]