The Councils Did Not Fail to Comply with Either the EPAA or the EPA Regulations
60Essentially, Mr Oshlack argues that, in making the two decisions, neither Rous Water nor Ballina Council properly considered the impact of the relevant fluoridation activities on the environment as mandated by s 111 of the EPAA and cl 228(2) of the EPA Regulations.
61This was demonstrated, he submitted, by the absence of information before either Council as to the fate of fluoridated water and its interaction with, and impact upon, the receiving environment. In the alternative, Mr Oshlack contended that there was no process of evaluation sufficient to constitute any real, proper or genuine consideration of the impact of fluoridation on the environment to achieve compliance with s 111 of the EPAA.
62Section 111 of the EPAA imposes a duty on a determining authority, in this instance, the two Councils, 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 provision goes on to list some of the matters that the determining authority must consider (mandatory language is employed, viz, "shall") in discharging their duty.
63As the Councils correctly submitted, however, the power to make the Rous Water and the Marom Creek decisions was exercisable pursuant to s 24 of the Local Government Act 1993, which provides that a local council may carry out activities appropriate to the current and future needs of the local community and the wider public:
24Provision 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.
64The distinction between the duty imposed on both Councils and the power they exercised to make the two decisions under review is not unimportant given the significance attached by Mr Oshlack to the legal advice sought and received by Rous Water and Ballina Council prior to making their respective decisions. This is because, either the Councils discharged their statutory duty or they did not. The reasons why - for example, reliance upon legal advice, correct or otherwise - are irrelevant.
65The duty upon each Council as the determining authority to "examine and take into account to the fullest extent possible" the matters obliged to be considered in s 111 is, upon that provision's proper construction, qualified by the word "reasonably". That is to say, the Councils' duty is to examine and take into account the matters referred to in that section to the fullest extent reasonably possible.
66In Guthega Developments Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 (at 366D-G); (1986) 61 LGRA 401 the Court of Appeal, drawing upon the decision in F Hannan Pty Ltd v Electricity Commission of New South Wales (1983) 3 NSWLR 282; (1983) 51 LGRA 353 (at 365-366), held in relation to s 111 of the EPAA (citations omitted):
It was then submitted that alternatively to the challenge to the environmental impact statement, with which I have dealt, the Minister, as determining authority, failed, in considering his final decision to grant or withhold the leases, 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" as enjoined by the Environmental Planning and Assessment Act, s 111. In F Hannan Pty Ltd v Electricity Commission of New South Wales, Cripps J (at 365-366) expressed the view that s 111 was mandatory and that compliance with its requirements was "pivotal to a proper working of Pt V of the Act". I agree, with respect, that its requirements are mandatory, and it is obviously intended to draw attention to the responsibility imposed upon a determining authority to protect the environment against the harmful effects of a projected development. At the same time, it can scarcely be read literally and without some modification of its terms. For example, the phrase "to the fullest extent possible" would present an insoluble problem to an administrator since it would be necessary to search the aggregated knowledge of the experts of the world in order to discharge the almost limitless burden imposed by the word "possible". "Possible" is of a similar kind to "foreseeable", a word etched in the professional cores of common lawyers and capable of very extensive application indeed. Accordingly, in my view, some element of reasonableness must be introduced and may be achieved by reading the section as if the word "reasonably" was inserted before "possible". This is the conclusion to which Cripps J came and, in his judgment, he read the expression "to the fullest extent possible" as incorporating "a concept of reasonableness and practicability. The purpose of s 111 is to impose upon determining authorities an obligation to consider to the fullest extent reasonably practicable, matters likely to affect the environment".
67This construction has been applied in the Court of Appeal in Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 (at [68]) and more recently in this Court in Parks & Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346 (at [158] per Biscoe J).
68Mr Oshlack relied on Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 (at [20]-[23]) to submit that the construction of the phrase "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity" was informed by the "level of particularity" contained in cl 228(2) of the EPA Regulations. Although that case concerned a very different statutory framework, this proposition, at a broad level, is undoubtedly correct.
69An additional matter to consider in determining this ground of review is the absence of any challenge by Mr Oshlack to the direction or approvals given by the Secretary of the Department of Health to uplift the fluoride levels. The Secretary is not a party to the summons.
70The Fluoridation Act confers the decision-making power of giving a direction or granting an approval upon the Secretary of the Department of Health. In carrying out these functions the Secretary is advised by the Public Water Supplies Advisory Committee ("the Committee").
71It is not suggested by Mr Oshlack in either his pleadings or his submissions that Rous Water or Ballina Council were not entitled to rely on the validity of the approvals or direction. Plainly they were.
72Pursuant to s 110 of the EPAA, both the Secretary and the two Councils are "determining authorities" for the purpose of Pt 5 of the EPAA.
73Section 110E(c) of the EPAA provides:
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.
74While the effect of this provision is not to remove the obligation from either Rous Water or Ballina Council to comply with s 111 of the EPAA, the fact that there were valid authorisations, a valid direction and valid approvals under the Fluoridation Act further logically impacts upon the reasonableness required to discharge their duty under s 111.
75In addition, it may be presumed, absent challenge, that as a "determining authority" the Secretary considered to the fullest extent reasonably possible all matters affecting the environment pursuant to s 111 of the EPAA. This is, in my opinion, a matter that Rous Water and Ballina Council could also have regard to in the performance of their obligations under s 111 of the EPAA.
76With these qualifications on the extent of the duty statutorily imposed on the Councils in this instance, was the duty discharged? In my opinion, having regard to the chronology detailed above and having regard to the material before Rous Water and Ballina Council at the time they made their respective decisions, it was.
77This material included the following:
(a)the fact that the water supply adjoining that under the control of Rous Water had been fluoridated since 1960. I readily infer that Rous Water was aware of this fact;
(b) the Department of Health's letter to Rous Water on 15 February 2010 referring to the comprehensive literature review conducted in 1990 and confirming its advice that scientific evidence supported the fluoridation of water supplies as safe for the environment, beneficial for health and revealing absolutely no negative environmental impacts as a result of water fluoridation;
(c)the letter sent by NDC to Rous Water on 16 February 2010, referring to the Department of Health's letter above, and stating that the Department, in determining to add fluoridated water into the water supply, had addressed the issue of the environmental impact of fluoridated water on the receiving environment;
(d)a forwarded copy of the letter sent on 19 February 2010 by the EPA to the Chief Dental Officer, which noted that fluoridated water had been supplied by water authorities throughout New South Wales and that the concentration of 1mg/L was not considered environmentally harmful;
(e) the REF, which noted that:
(i)the proposed fluoridation plant sites were of a generally disturbed nature and it was considered "unlikely that any of the sites would offer suitable habitat for threatened flora or fauna";
(ii)the proposed plant at Knockrow was located on the Pacific Highway at the site of a former water treatment plant and existing water supply reservoir. The site consisted of a lawn and landscaped plants with poor quality fauna habitat and no fauna observed at the site;
(iii)the proposed plant at Clunes was located on a reserve owned by Lismore City Council opposite an existing metering pit which received weekly maintenance visits. The site adjoined a macadamia orchard and contained Camphor Laurel, a noxious weed. The site contained poor fauna habitat and, again, no fauna was observed on it;
(iv)the proposed plant at Corndale was located in a rural area where grazing was the dominant rural activity. It was next to two existing water supply reservoirs. The site comprised pasture grasses and had been cleared of trees and native vegetation. Similarly, the site was considered to be of poor quality fauna habitat and no fauna was observed on it;
(v)the proposed plant at Dorroughby was located on land owned by Rous Water and was next to two existing water supply reservoirs and existing infrastructure. The land had been cleared of vegetation. There were no trees present and the vegetation consisted of mown grass and weeds. No fauna was observed on the site; and
(vi)the proposed Marom Creek plant was located within the Marom Creek water treatment plant site. The site consisted of mown grass within the water treatment plant grounds and the surrounding land was dominated by macadamia plantations;
(f) a review by NDC of the public submissions received during the public exhibition of the REF, completed for the purposes of preparing the Determining Authorities Reports for both Ballina Council and Rous Water; and
(g) the Determining Authorities Report submitted to Ballina Council by NDC, which had regard to the REF and recommended that the Council endorse the REF because it had been prepared with due consideration of the relevant legislative requirements. The Report stated that the construction and operation of the fluoride dosage plant at Marom Creek was "not considered to result in any unacceptable or unsustainable environmental impacts."
78In light of this and other material concerning the effects of fluoridated water on the environment, both at the sites of the proposed fluoridation plants and on the receiving waters, I find that both Rous Water and Ballina Council adequately discharged their duty pursuant to s 111 of the EPAA and cl 228(2) of the EPA Regulations insofar as, in my opinion, each took into account to the fullest extent reasonably possible all matters affecting or likely to affect the uplift in water fluoridation on the environment.
79The consideration of this material in the context of the long history and extensive coverage of fluoridation in this State, a fact that was known to the Councils, cannot be ignored. Neither can the fact that Rous Water was sufficiently diligent in relation to the discharge of its duty that it sought and obtained legal advice as to its regulatory obligations under the EPAA and the Fluoridation Act.
80In making these findings it follows that I reject the less than implicit submission made by Mr Oshlack that it was incumbent upon each of Rous Water and Ballina Council 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. In considering to the fullest extent reasonably possible the matters contained in that provision and in cl 228(2) of the EPA Regulations, both Rous Water and Ballina Council were entitled to have regard to relevant material already in existence. To do so was not an abrogation of their duty provided they separately discharged their function under s 111.
81Finally, it is important to recall that the direction and approvals were to uplift the level of fluoride in the water, not to introduce fluoride into completely unfluoridated water. As a consequence, and while in no way circumscribing the nature of the duty imposed by s 111 of the EPAA, the scope of what was reasonably required to be examined "to the fullest extent possible" in the discharge of any duty under s 111 was necessarily confined by this fact.
82In the alternative, Mr Oshlack submitted that the Councils failed to give "proper, genuine and realistic consideration" of relevant matters contained in s 111 of the EPAA.
83The genesis of the phrase "proper, genuine and realistic consideration" is attributed to Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 (at 292). Although it was criticised by Basten JA in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 (at [79]) lest it "encourage a slide into impermissible merits review", and caution was urged in its use in Anderson v Director General, Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 (at [57] per Tobias JA), the High Court has nevertheless continued to employ this formulation (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [26], [32] and [34]).
84The gravamen of Mr Oshlack's complaint in this regard is that Rous Water and Ballina Council considered themselves compelled by the direction and approvals given to them by the Secretary to the Department of Health to fluoridate the public water supplies under their control, and therefore, neither had given proper, genuine or realistic consideration to the mandatory matters contained in s 111 of the EPAA and cl 228(2) of the EPA Regulations.
85This was most tolerably apparent, Mr Oshlack submitted, in Rous Water's requests for legal advice to clarify its obligations pursuant to the direction and approvals. Further, Rous Water demonstrated a belief, evident in the language employed in its minutes of meetings and public notices and confirmed by the erroneous advice, that it had no discretion whatsoever to refuse to comply with the approvals and direction. Ballina Council considered itself equally fettered, having also received the Lindsay Taylor advice and employing similar language.
86Thus, Mr Oshlack submitted, the decisions made by Rous Water and Ballina Council were made in circumstances of "duress" occasioned by the false belief that they had no option but to resolve to add fluoride to the water.
87There are two reasons why this argument must be rejected. First, the inference Mr Oshlack invites the Court to draw from the material, namely, that the Councils considered that they were compelled to make the decisions they did, is, in my opinion, misconceived. That various Council documents describe the uplift of fluoride levels in the public water supplies in nondiscretionary terms is explicable by recourse to the language employed in s 6A of the Fluoridation Act ("the Secretary may, by notification published in the Gazette, direct a water supply authority to add fluorine to a public water supply": s 6A(1)), and the express language of the provisions making it an offence not to comply with or to contravene a direction or any terms attached to a direction (s 6A(5)) or the conditions attached to an approval (s 6(6)).
88Read in this context, the material does no more than pick up the words of the statute and the various notices published in the Gazette and elsewhere employing similar, if not identical, language. There is no cogent evidence permitting the inferences to be drawn contended for by Mr Oshlack, and I decline to do so.
89Second, to the extent that this submission relies on the provision of the legal advices referred to above, Mr Oshlack mischaracterises the content, and erroneously presumes the effect, of those advices.
90Importantly, the Blakes advice states that the Council had sufficient material before it to satisfy s 111 of the EPAA and that the Council should proceed to assess the environmental impacts of the proposed uplifts and dosing plant construction. The advice does not mandate the outcome of the assessment, rather it states that the Council has sufficient information to proceed to an assessment and that any failure to do so may result in a breach of the Fluoridation Act. The Lindsay Taylor advice is in similar terms.
91In this regard it should be noted that, under this ground of review, the task for the Court is to determine whether or not Rous Water and Ballina Council complied with s 111 of the EPAA. This is an objective inquiry. Thus even if the Councils held a subjective view that the material before them was inadequate, this view was irrelevant. Provided the Councils examined and took into account the matters referred to in s 111 of the EPAA (and cl 228(2) of the EPA Regulations) to the fullest extent reasonably possible, each Council discharged its duty. The same result would follow if the Councils believed that they had taken into account the matters referred to in s 111 to the fullest extent reasonably possible, but as a matter of objective fact they had not. The subjective beliefs of the Councils could not save what would otherwise be a decision infected with error.
92In any event, there is insufficient evidence upon which it can reasonably be concluded that the Councils were somehow intimidated into making their decisions. On the contrary, the chronology of the decision-making process reveals that each Council engaged in its task in a cautious and thorough manner. That the vote by Rous Water was not unanimous (four councillors voted against the proposed resolution) strongly indicates, in my opinion, that its will was not overborne in the manner suggested by Mr Oshlack.
93By way of illustration, the decision in Kindimindi concerned the alleged failure of Lane Cove Council to apply its collegiate mind to the consideration of a development application to build a shopping centre. The essence of the complaint was that at least three of the eight councillors had not had sufficient time to adequately consider the material provided to them before the meeting at which the application was determined. This was obviously a subjective assessment in the mind of the councillors.
94In rejecting this challenge, and in emphasising that the assessment was objective in nature, Basten JA applied the reasoning in the decision of Parramatta City Council v Hale (1982) 47 LGRA 319. He summarised that case in the following terms (at [63], emphasis added):
63 In Parramatta City Council v Hale (1982) 47 LGRA 319, this Court considered the decision-making process involved in giving approval to a large sports stadium on Cumberland Oval. The decision of the Council was set aside on the basis that it had failed to give proper consideration to matters specified by statute as matters required to be considered. As noted by Street CJ (at 335):
"A normal prerequisite to taking a matter into consideration is that the members of the council should have an opportunity of understanding the relevant implications of the proposal before them in relation to the topics that they are required to take into consideration."
In the circumstances of that case, both the Land and Environment Court and the majority in this Court were satisfied, on an objective appraisal of the materials before the Council, that the complexity of the issues, changes made from the recommendations presented by expert officers of the Council, followed by a decision which, in the material respects left important aspects virtually at large, demonstrated that there had been a failure to take mandatory considerations into account.
95His Honour's comments in Kindimindi concerning "the way this particular ground was presented" are apposite to the present case (at [73]). In that case Basten JA referred to the "orthodox principle that mandatory considerations, failure to take which into account will constitute reviewable error, are those mandated by the relevant legal or statutory scheme. ... However, submissions and supporting materials are generally not treated as constituting part of the mandated considerations." He observed that "little attention was paid to the need to distinguish between mandatory considerations and relevant supporting documentation" (at [73]).
96The same criticism may be levelled in these proceedings. The Blakes advice was neither a mandatory consideration nor a prohibited consideration. It did no more than state that the material before Rous Water was adequate to satisfy s 111 of the EPAA. Likewise the Lindsay Taylor advice. It has not been demonstrated that, by reason of either advice, the Councils regarded themselves as improperly bound or that either Council failed to take into account to the fullest extent reasonably practicable the mandatory matters it was required to consider pursuant to the legislation.
97On the contrary and as discussed above, Rous Water had been considering these issues since 2005. There had been extensive public consultation. The Council had commissioned the REF, which examined the environmental impacts of the approved and directed activity in detail. NDC, the consultants engaged by the Council, required further assurance on the environmental impacts and obtained such assurance from the Department of Health. The Council then adopted the REF, incorporating as it did the material from the Department of Health. It was only after this process, which culminated in the provision of the two legal advices, that the Council proceeded to make a decision because the material before it was sufficient for it to do so; not because, as Mr Oshlack submitted, the legal advices dictated the decision it should make.