PATH LINE AUSTRALIA P/L v EPA & INTEGRATED WASTE SERVICES P/L No. SCCIV-00-302 [2002] SASC 37

Supreme Court of SA|2002-02-11|Before: Debelle J

Judgment No. [2002] SASC 37

PATH LINE AUSTRALIA PTY LTD v ENVIRONMENT PROTECTION AUTHORITY AND INTEGRATED WASTE SERVICES PTY LTD

DEBELLE J. The plaintiff, Path Line Australia Pty Ltd ("Path Line"), has applied for a declaration that a licence granted by the Environment Protection Authority ("the Authority") to the second defendant, Integrated Waste Services Pty Ltd ("IWS"), is invalid. The licence authorises IWS to dispose of waste in a bulk landfill facility. Path Line also seeks an injunction to restrain IWS from acting in reliance on that licence.

This application was commenced on 29 March 2000. Path Line had then applied for a declaration that a waste disposal licence granted by the Authority to IWS on 16 December 1999 was invalid and an injunction restraining IWS from acting in reliance on that licence. However, the Authority has from time to time renewed the licence issued to IWS on occasions with terms which differ from the original licence. This has caused the hearing of this application to be adjourned from time to time so that Path Line could consider its position. The licence was last renewed on 30 August 2001. The renewed licence is dated 17 September 2001. Leave was granted to Path Line to amend its summons and a fresh application was issued on 16 October 2001. It is that application which I now determine.

Initially, IWS contended that Path Line had no standing to bring these proceedings. However, it has abandoned that contention.

I set out the events leading to the application.

Integrated Waste Services Pty Ltd is the present name of a company which used to be called P & M Borrelli & Sons Pty Ltd. On 13 September 1994 P & M Borrelli & Sons Pty Ltd lodged with the District Council of Mallala an application for provisional development plan consent to use land near Dublin for the disposal of waste. The application involved the development of a substantial waste disposal facility. The application was referred to the Minister. It is common ground that, on 19 October 1994, the Minister determined, pursuant to s 46 of the Development Act 1993, that the proposed development was a development of major environmental significance and declared that it was subject to s 46 of that Act. One consequence of the determination by the Minister under s 46 is that it is the Governor who determines whether to grant or refuse approval: s 48 of the Development Act. The Minister also determined, pursuant to s 46B of that Act, that an Environmental Impact Statement ("EIS") must be prepared. In addition, s 48(3) prohibits the Governor from granting a development authorisation unless an EIS has been prepared.

P & M Borrelli & Sons Pty Ltd prepared an EIS dated February 1996. The EIS was made available for public inspection and submissions were invited: s 46B(5). Submissions were received. Pursuant to s 46B(8) of the Development Act, P & M Borrelli & Sons Pty Ltd which, by this time, had changed its name to Integrated Waste Services Pty Ltd, prepared a response to the submissions which was dated May 1997. IWS later caused to be prepared a document entitled "Solid Waste Balefill Clarification of Issues". The document was dated August 1997.

On 2 December 1997 IWS lodged a development application dated 27 November 1997 with the Minister. The proposal described in the application was a "waste management facility". Accompanying the application was a Development Application Report. Forming part of that report were

• the IWS response to submissions in respect of the EIS, and

• the document entitled "Solid Waste Balefill Clarification of Issues".

On 29 January 1998 the Governor granted a development authorisation for the proposed development. Pursuant to s 48(7), the Governor imposed conditions on the approval. On the same day, pursuant to s 48(8) of the Development Act, the Governor, by notice published in the Gazette, delegated to the Development Assessment Commission the power to grant or permit any variation of the development authorisation and the power to vary, revoke or add to the conditions attached to the development authorisation. No issue arises out of the terms of the delegation. However, one of the issues in this application concerns the terms of Condition 1. I will return to that issue.

The waste disposal facility proposed by IWS was a prescribed activity of environmental significance. IWS was, therefore, required to obtain what the Environment Protection Act 1993 euphuistically calls "an environmental authorisation" to operate the facility pursuant to s 36 of that Act. (A prescribed activity of environmental significance is defined in s 3 and in para 3 of Schedule 1 of the Environment Protection Act.) I will for convenience refer to the environmental authorisation as a "licence". IWS applied to the Authority for the required licence.

A licence remains in force for such period of time as is determined by the Authority and as is specified in the licence: s 43(1) of the Environment Protection Act. Applications may be made to renew a licence: s 43(2). The Authority has power to impose conditions on the grant or renewal of a licence: s 45. The factors to which the Authority shall have regard when granting a licence are prescribed in s 47 of the Environment Protection Act.

On 14 December 1999 the Authority approved a document prepared by IWS as the Landfill Environmental Management Plan ("LEMP"). On 16 December 1999 the Authority granted IWS a licence under s 38 of the Environment Protection Act. The licence authorises IWS to operate a waste management facility in the form of solid waste fill on land near Dublin. IWS has commenced construction of the facility at Dublin.

The development authorisation granted by the Governor on 29 January 1998 had, in conditions attached to that licence, referred to the fact that the Authority would require IWS to approve a Landfill Environmental Management Plan ("LEMP"). It seems that the need for a LEMP had been anticipated because preparation of the plan began in March 1998, some nine months before the Governor had granted the development authorisation. Between July 1998 and December 1999, negotiations took place between IWS and the Environmental Protection Agency concerning the content of the LEMP as well as the terms and conditions of the licence to be granted by the Authority. The Environmental Protection Agency is an administrative unit in the Department for Environment and Heritage. Its task is to assist the Authority: s 14(b) of the Environment Protection Act. I will refer to it as "the Agency". In December 1999 the Authority approved the LEMP and granted the first licence dated 16 December 1999 to IWS. IWS was then authorised to proceed with its waste disposal facility.

As already mentioned, Path Line had on 29 March 2000 issued these proceedings seeking a declaration that the licence issued on 16 December 1999 was invalid. Earlier on 29 February 2000, Piper Alderman, the solicitors for Path Line, had written to the Authority asserting that some of the conditions in the licence were invalid. On 2 March 2000 the Crown Solicitor wrote to Piper Alderman stating that it was acting for the Authority. The letter added that the terms of the licence were being reviewed. On 9 March 2000 Piper Alderman wrote to the solicitors for IWS in similar terms to their letter to the Authority dated 29 February 2000. The application in this Court, instituted on 29 March 2000, relied on similar grounds to those asserted in Piper Alderman's letter of 29 February.

In the meantime, on 22 December 1999, IWS had lodged an appeal in the Environment Resources and Development Court ("the Environment Court") against some of the conditions of the licence. Thereafter, negotiations were conducted between IWS and the Agency concerning the terms and conditions of the licence. The negotiations were lengthy. Eventually, on 27 October 2000 the Authority granted to IWS a licence amending the licence granted on 19 December 1999. In consequence, IWS withdrew its appeal to the Environment Court. Section 45(3) and (4) of the Environment Protection Act invests the Authority with power to vary or revoke conditions in the circumstances therein prescribed. There is no issue between the parties as to whether the Authority had power to vary the licence.

The amended licence was to expire on 31 December 2000. In November 2000 Path Line prepared a report on the shortcomings of the LEMP and presented it to IWS and the Agency. On 22 December 2000 the licence to IWS was renewed by the Authority on the same terms as the licence granted on 27 October 2000 but for a limited period from 1 January 2001 to 31 May 2001. It was renewed for a limited period because it was proposed that the licence should be revised during the first half of 2001.

In May 2001 the Agency and the solicitors for IWS and the Crown Solicitor agreed that an amended licence should be based on a revised LEMP. For that reason, and because it was necessary to revise the LEMP, the licence was on 31 May 2001 renewed for a limited period of three months from 1 June 2001 to 31 August 2001.

In August 2001 IWS submitted a revised LEMP to the Agency. There is evidence in the affidavit of Ms Wagner that the Agency and a Mr Roderick, a delegate of the Authority, approved the revised LEMP on 6 August 2001. The Agency is not a delegate of the Authority but Mr Roderick is. There is no issue between the parties on the purported approval of the Agency. On some date in August 2001 the draft licence was submitted to the solicitors for IWS and Path Line and to the Crown Solicitor for comment. Comments from IWS and the Crown Solicitor were provided and were taken into account in the preparation of the draft licence. At a meeting of the Authority on 30 August 2001, the licence was renewed for the period 1 September 2001 to 31 August 2002. Path Line asserts that, even as amended, the renewed licence issued on 30 August 2001 is invalid. As mentioned above, it is this licence which Path Line now contends is invalid. I will refer to the licence issued on 30 August 2001 as "the licence".

Although Path Line initially relied on a number of grounds, it now limits its challenge to the licence to the following grounds.

1. That there is a material inconsistency between the development authorisation issued by the Governor on 29 January 1998 and the licence or, alternatively, that no reasonable authority could have granted the licence with the inconsistency. Only one form of inconsistency is asserted.

2. That, when issuing the licence, the Authority failed to have regard to the development authorisation and related documents.

3. That the Authority had invalidly delegated its power when determining whether to issue the licence.

I deal with these issues in turn. The second ground is part and parcel of the first. I first deal with grounds 1 and 2.

The Governor's decision gazetted on 29 January 1998 granting development authorisation pursuant to s 48 of the Development Act was expressed in these terms:

"(a) I grant development authorisation for the development of the waste management facility in the form of a solid waste landfill in the District Council of Mallala as described in an application dated 2 December 1997, including the Development Application Report-Northern Balefill for Integrated Waste Services Pty Ltd (dated 28 November 1997), subject to the conditions attached and entitled 'Conditions (9) for Development Approval (Application dated 2 December 1997)-Northern Balefill for Integrated Waste Services Pty Ltd'; and

(b) pursuant to section 48(7) I specify all matters relating to the management and operation of the use of the site for waste disposal relevant to this authorisation as matters in relation to which I may vary or revoke conditions of this authorisation or attach new conditions to it."

Nine conditions were attached to the development authorisation. It is necessary to refer only to the first condition which read:

"1. The work must be carried out as shown on the plans in the application (Figures 3.1 to 3.9) and supporting documentation in the Development Application, except as varied by the conditions listed below, or varied directly in consequence to any subsequent licence requirement of the Environment Protection Authority (EPA)."

There is an apparent inconsistency between the terms of para (b) of the development authorisation and Condition 1. The last clause of Condition 1 on its face appears to invest the Authority with power to vary the manner in which the work is to be carried out as shown in the plans and supporting documentation in the development application. That it is inconsistent with the effect of para (b) which, when read with the delegation to the Development Assessment Commission, means that the Commission is the only authority which may vary, revoke or add conditions to the authorisation.

In addition, the last clause of Condition 1 is inconsistent with s 48 of the Development Act. The Governor has no power to delegate his functions under s 48 to any person other than the Development Assessment Commission: see s 48(8). If Condition 1 purports to delegate to the Authority the power to vary the manner in which the development shall be undertaken, it is manifestly invalid. The imposition of such a condition would mean that the Governor was acting in excess of the powers divested in him by s 48. The last clause in Condition 1 is plainly severable: Potato Marketing Board v Merricks (1958) 2 QB 316 at 333; Kingsway Investments v Kent C.C. [1971] AC 72; and Twenty-Seven Properties Ltd v Corporation of Noarlunga (1975) 11 SASR 188. The appropriate order would be to sever that clause. Section 48E of the Development Act does not, I think, divest the court of jurisdiction since it does not appear to apply where the Governor is acting in excess of jurisdiction: see, for example, R v Melbourne Magistrates Court; ex parte Hiscock [1977] VicRp 63; [1977] VR 569; ex parte Connell (1993) 10 WAR 414. However, it is unnecessary to determine this question as I do not believe that it was intended that Condition 1 should authorise the Authority to alter the terms of the development authorisation.

The purpose of Condition 1 is to indicate that the Development Assessment Commission, as the delegate of the Governor, may authorise a variation of the development authorisation. That conclusion is reinforced by the terms of the delegation. If, when determining the terms of the licence, the Authority concludes, say, that IWS should vary the manner in which it will undertake the development, it may inform IWS which may then apply to the Development Assessment Commission to vary the licence. Alternatively, the Authority might take the issue up with the Development Assessment Commission and suggest a variation. However, it is only the Development Assessment Commission which may vary the terms of a development authorisation.

Does the Development Authorisation bind the Authority?

Mr Rudd, who appeared for the Authority, contended that the Authority is not bound to adhere strictly to every aspect of the development authorisation. He pointed to the fact that, when determining whether to grant or renew a licence, the Authority is required by s 47 of the Environment Protection Act to have regard to a number of factors listed in s 47(1). Those factors include a development authorisation issued under the Development Act: s 47(1)(f). He relied on the observations of this Court in South Australian Planning Commission v Dorrestijn (1984) 36 SASR 355 at 371. In Dorrestijn, the Full Court was considering the expression "have regard to" in a list of factors prescribed by s 47(9) of the Planning Act 1982 as factors to which a planning authority should have regard when determining whether to grant planning approval. Cox J, with whom King CJ agreed, held (at 371) that the expression "have regard to" did not bind a planning authority to comply with those listed factors. He said:

"Those words have generally been construed, in a context such as this, as requiring the authority concerned to take the stated matters into account and consider them and give due weight to them, but without being bound to comply with them. Ultimately, the authority's discretion remains unfettered. ... It is not possible, in my opinion, to interpret sub-s. (9) of s. 47 as requiring the planning authority to conform with the provisions of the Development Plan that are relevant to its decision."

Those observations were applied by Jacobs J in Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 at 171 - 173 and reaffirmed by the Full Court on appeal, (1985) 38 SASR at 186 - 187.

It will be noticed that Cox J did not state that the expression "have regard to" universally had the meaning which he identified. He prefaced his conclusion by stating that was "generally" the meaning of those words in that context. In my view, the meaning and effect of those words must be determined by reference to the context in which they appear. There will be occasions when the requirement to have regard to prescribed factors will have a more binding obligation so that the factor or factors will be fundamental matters for consideration: see, for example, R v Hunt; ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329; R v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333. In certain circumstances, they will not be a basis for disregarding or defeating a statutory policy: Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 365. In short, it is necessary to have regard to the statutory context in which the requirement to have regard to a specified factor appears for the purpose of determining whether a decision-maker must conform to that factor.

The observations of Cox J may well apply to most, if not all, of the factors listed in s 47(1)(c) to (j) of the Environment Protection Act, other than a development authorisation. However, for the reasons which follow, they do not apply to a development authorisation granted under s 48 of the Development Act in respect of a development authorisation for a prescribed activity of environmental significance.

Section 48 of the Development Act is one of several provisions in that Act governing approval for developments or projects of major environmental, social or economic importance. These are special provisions, separate and apart from the ordinary processes of planning approval. The process of obtaining approval for a development project of major environmental importance requires an EIS as well as other procedures. The planning scheme for such developments or projects clearly envisages intensive examination and scrutiny of the proposal after which the Governor determines whether a development authorisation should be granted. There is no appeal from the decision of the Governor nor can that decision be challenged by judicial review or any other legal proceeding: s 48E of the Development Act. Furthermore, where the proposed activity requires approval under the Development Act, the grant of a development authorisation is a statutory prerequisite to the grant of a licence under the Environment Protection Act: s 47(2a) of the Environment Protection Act. In other words, the statutory context shows that a development authorisation has a status quite different from the other factors listed in s 47(1). It is not simply a matter to be considered by the Authority. Instead, it is a factor which binds the Authority. These matters demonstrate that the Authority should not issue a licence inconsistent with the development authorisation. That conclusion is reinforced by the fact that only the Governor, or the Development Assessment Commission as the Governor's delegate, may vary, revoke or add to conditions of a development authorisation. Taken to its ultimate conclusion, the effect of Mr Rudd's argument is that the Authority could so amend the development authorisation as to negate what might be terms and conditions which the Governor intended to be critical to the management and operation of the proposal. That proposition has only to be stated to demonstrate that the argument is without validity and must fail.

Mr Rudd submitted that there was a need for flexibility in that, in the course of its consideration of the terms and conditions of a licence, the Authority might find it necessary to alter the terms of a development authorisation or the conditions attached to it. It was said that the Development Act and the Environment Protection Act served two different purposes which emphasised a need for flexibility. Plainly, flexibility is to be desired particularly where, as here, the Governor has effectively left it to the Authority to determine important matters of detail concerning the management and operation of this waste management facility. But these are not reasons for investing the Authority with what, in effect, constitutes a power to amend the development authorisation. If the Authority believes that amendments are required, it can draw that fact to the attention of IWS which can in turn apply for the development authorisation to be amended. Alternatively, the Authority may take the matter up directly with the Development Assessment Commission. A preferred course may be for those advising the Governor to resolve all of these management issues with the Authority before the Governor is advised to grant a development authorisation. As it is necessary in any event to obtain the grant of a licence from the Authority, this will not delay the process of obtaining approval, but may well expedite it.

The next issue is whether the terms of the licence granted by the Authority are inconsistent with the terms of the development authorisation. The licence granted by the Authority permits IWS to operate a waste or recycling depot. The licence is subject to some 38 conditions, many of which contain several obligations. As so many conditions are attached to the grant of the licence, it might be questioned whether the licence should have been granted at all: c.f. City of Mitcham v Freckmann (No 2) [2000] SASC 101; (2000) 76 SASR 145 at 149 - 150. However, that is not an issue in this action.

Path Line contends that the following condition is inconsistent with the development authorisation. The condition is numbered 67-287. Apparently, this number is a form of computer numbering of precedents for conditions which might be imposed in respect of different kinds of development. It would have been preferable if the Authority had renumbered the conditions in an ordinary numerical sequence once it had been decided to incorporate them into the licence. The condition reads:

"The Licensee must not receive the following categories of waste at the Premises unless the waste has been processed as follows:

1. domestic waste must have been baled, except for non-friable asbestos;

2. commercial and industrial waste must have been baled;

3. construction and demolition waste must have been sorted so as to remove papers, plastics, organic materials (such as green waste) and metallic materials (such as metal sheeting and containers);

4. green waste must have been shredded or baled; and

5. bulky wastes must have been processed as required in respect of the applicable permitted waste category (if necessary for effective compaction of bales, bulky wastes must have been shredded)."

Path Line contends that the terms of the development authorisation required domestic, commercial and industrial waste to be both shredded and baled. This is the only matter which Path Line contends is inconsistent with the development authorisation. The effect of Path Line's contention is that Conditions 1 and 2 are inconsistent with the development authorisation in that they do not require the shredding as well as the baling of domestic, commercial and industrial waste. IWS contends that the development authorisation is for a balefill operation that involves shredding of some, but not all, waste. It is therefore necessary to determine what was approved by the development authorisation. I will deal later with the meaning of para 5 of the condition.

As is apparent from para (a) of the development authorisation, what has been authorised is a waste management facility in the form of solid waste fill as described in the application lodged by IWS on 2 December 1997 as well as in the Development Application Report. Condition 1 required the work to be done in accordance with the plans and supporting documentation in the development application. It is therefore necessary to examine the development application and the accompanying documents in order to determine what was approved by the development authorisation. Those documents are:

• the response of IWS to the submissions in respect of the EIS;

• the document entitled "Solid Waste Balefill Clarification of Issues"; and

The plaintiff has not proved any other documents which accompanied the development application. All that is available are the four documents listed above and the development application itself.

I am satisfied that the effect of the four listed documents is that all domestic, commercial and industrial waste will be both shredded and baled. The shredding will occur before baling in order that bales of waste may more readily be compacted. In reaching that conclusion, I rely on statements made by IWS in its EIS and in its response to submissions on the EIS. I list the extracts. Although they are but extracts, when read together and in the context of each document, they reinforce the conclusion I have reached.

"In relation to its proposal for the Mallala Balefill, the company's objectives are ...

• to provide a site for the final disposal of shredded and baled wastes, and demolition and inert waste in a commercially sustainable, orderly and attractive manner."

"The main features of the proposal include the following:

• The proposal is principally a balefill method of landfilling - where waste is delivered to the site in an already baled and compacted form; ...

• baling and shredding will eliminate wind blown litter." [Original emphasis.]

"It is envisaged that the Mallala balefill will receive waste ... transported to the site from the Wingfield transfer station by bulk haulage and transfer vehicles, after treatment by shredding and baling."

"The treatment of waste will occur prior to waste disposal at the landfill. Treatment methods including baling, shedding (sic), separation of waste streams, resource recovery and mulching of green waste, will act to reduce the volume of waste going to landfill and subsequent potential for release of emissions."

"It is expected that the baling and shredding of waste prior to transport to the site will eliminate the potential for wind blown litter generation."

"Odour generation will be controlled and minimised by the following measures ...

It is necessary to refer also to pp 79 and 80 of the response by IWS to submissions in respect of the EIS. The remarks made at pp 79 and 80 were made by IWS in response to concerns expressed about pest and weed control. The fact that the waste was shredded and compacted by baling was stated as a solution to each of these concerns. Thus, under the heading "Pests" which dealt with concerns about pest control, the response reads:

"In addition to the above methods of control, the controlled nature of the operations at IWS Northern Balefill ie. disposal of shredded and densely compacted waste bales minimises void spaces in the landfill, ensuring that avifauna, vectors and vermin are not attracted to and cannot establish within the balefill waste."

On p 80, when dealing with concerns about infestation of weeds, the response reads:

"The waste will be shredded and compacted by baling, and covered on site. No natural light will penetrate the waste once in place. This combines to create poor growing conditions for any weed species incorporated into the waste."

The tenor of all of the above references is that all domestic, commercial and industrial waste will be shredded, a conclusion reinforced by the repeated use of expressions such as "shredding and baling". It must be acknowledged that shredding and baling are two separate processes and that baling can occur without shredding. But neither affects the conclusion.

I acknowledge also that in para 5.1 of the EIS, IWS describes the waste to be received at Dublin in these terms:

Mixed waste generated from residential premises including food scraps, garden wastes and non-recycled paper, glass, plastics and metals.

Mixed waste generated from commercial and industrial premises; such waste includes food scraps and non-recycled paper, glass, plastics and metals."

I do not believe that the fact that commercial and industrial waste is simply described as "(Baled)" invalidates the conclusion that commercial and industrial waste, as well as domestic waste, will be shredded and baled. As the table on p 52 of the EIS shows, the anticipated annual quantity of baled domestic waste to be dumped at Dublin is 30,000 tonnes compared with 70,000 tonnes of baled commercial and industrial waste. The total quantity of baled waste to be dumped in each year at Dublin is therefore 100,000 tonnes. Two conclusions only are open. The first is that IWS intends that all its baled waste will have first been shredded. The second is that, in stating in its response to submissions concerning the EIS that waste will be shredded and baled, IWS was referring only to 30 per cent of its baled waste. If that is so, IWS was guilty of misleading conduct. I assume that IWS did not intend to mislead. I, therefore, prefer the conclusion that IWS intends that all baled domestic, commercial and industrial waste will have been shredded before baling, a conclusion confirmed by the response of IWS to submissions on its EIS.

Finally, commercial factors indicate that IWS intends to shred domestic, commercial and industrial waste before baling it. The cost of transporting waste to Dublin is obviously high. The more compact the bale, the greater the quantity of waste which can be carried at the one time. Similarly, the more compact the bale, the longer is the life of this waste disposal facility. This is all confirmed by the EIS and on p 28 of the response by IWS to submissions on its EIS. Paragraph 4.2 deals with the topic of balefill operation. The last paragraph on p 28 reads:

"A typical high performance 2-ram baler, manufactured in the United States, is expected to achieve a bale density between 800 to 1200 kg/m3 producing bales with weights up to 1¼ tonnes each. This density is achievable with most solid waste materials, as shredding before baling permits higher compaction rates. In addition, pre-shredding before baling permits the baler to produce a very regular and uniform bale, with resultant tighter stacking and overall density improvement."

The reference to "pre-shredding before baling", read with all other references including reference to "baling and shredding" is quite compelling.

For all of these reasons, I conclude that the development authorisation requires both shredding and baling of domestic, commercial and industrial waste. If the licence issued by the Authority does not expressly require shredding and baling of these forms of waste, it does not mean that IWS is released of the obligation to shred such waste before baling. It simply means that the licence assumes that shredding has occurred before baling in accordance with the development authorisation.

It is not clear from para 5 of this condition whether the Authority intended that shredding should occur to the extent envisaged by the development authorisation. The licence defines "bulky waste" to mean "items of waste which exceed 1 metre in one dimension and 0.5 metre in another dimension". It also defines the term "shredded" to mean "processed by mechanical shearing or cutting to achieve a size reduction in one or more dimension". The terms "domestic waste" and "commercial and industrial waste" are also defined but it is unnecessary to refer to them. The definition of the expression "shredded" suggests a degree of shredding. The materials which have been tendered do not indicate whether shredding to the degree contemplated by the definition is shredding in the same degree as was approved in the development authorisation. In this uncertain state of the evidence, it is not possible to reach any conclusion. The submissions of Mr Rudd for the Authority and para 8 of Ms Wagner's affidavit suggest that only a limited degree of shredding was required. I think it preferable to consider this issue without regard to para 5.

Mr Hayes QC, counsel for IWS, submitted that the interests of proper management of public health required that certain kinds of waste should not be shredded. If shredded, he said, some waste would be "soupy" and could not be baled. The argument lacks factual foundation as the conditions of the licence prohibit IWS from disposing of liquid waste and sludges at this site. Furthermore, the licence defines domestic waste and commercial and industrial waste to exclude liquid waste or waste sludges.

For these reasons, although the licence issued by the Authority may be inconsistent with the development authorisation, that fact does neither invalidate the licence nor qualify the effect of the development authorisation.

As already mentioned, on 6 August 2001 Mr Roderick, an officer employed in the Agency approved the amended LEMP. Subsequently, on 30 August 2001, the Authority renewed the licence from 1 September 2001 to 31 August 2002. Mr Kourakis QC, who appeared for Path Line, contended that the function of renewing the licence could not be fragmented so that a delegate of the Authority approved the LEMP and the Authority itself determined whether to renew the licence. One person, he said, must determine all issues relating to the renewal. Alternatively, he contended that the task of approving the LEMP is not a function of the Authority so that Mr Roderick's approval had no legal effect with the consequence that the delegation was invalid and the amended LEMP had not been approved.

By virtue of s 115 of the Environment Protection Act, the Authority has power to delegate its powers or functions under the Act. Section 115 provides:

"115. (1) The Authority may, by instrument executed by the Authority, delegate to a specified public authority or other person or committee of persons, or the person for the time being holding or assigned to a specified office or position, any power or function of the Authority under this Act.

(2) A delegation under this section may be given subject to conditions specified in the instrument of delegation.

(3) A delegation under this section is revocable at will and does not prevent the Authority from acting in any matter."

It will have been noticed that a delegation may be made to, among others, a person or to "the person for the time being holding or assigned to a specified office or position". The Authority has, by an instrument dated 12 December 2000, delegated a number of its powers and functions to "the persons for the time being holding or assigned" to designated positions in the Agency. For example, it delegates its powers and functions under s 38(1) and s 49(5) of the Environment Protection Act to the person who is for the time being the Executive Director of the Agency. For present purposes, it is relevant to note that the Authority has by this instrument delegated to the holder of nine designated positions including Manager, Technical Support, Operations the following powers and functions:

"The powers and functions under sections 38-56 inclusive of the Act that are necessary or incidental to the grant, renewal and transfer of environmental authorisations in the form of licences and which are necessary or incidental to the imposition, variation or revocation of conditions, including special conditions, upon the grant, renewal or transfer of those environmental authorisations EXCEPT FOR the powers and functions under sections 38(1) and 49(5) of the Act."

Mr Roderick was on 6 August 2001 the Manager, Technical Support, Operations, of the Agency. There is no delegation to the Agency. It was pursuant to this delegated authority that Mr Roderick approved the LEMP. It is common ground that Mr Roderick was a duly appointed delegate of the Authority. The question is whether he could, as delegate, approve the LEMP and whether the approval of the LEMP was part of the decision-making process of renewing the licence.

When the Authority considered whether to renew the licence held by IWS at its meeting on 30 August 2001, it had before it a recommendation from Ms M Wagner, an adviser on waste management employed in the Agency. Her recommendation was in these terms:

"Both documents, the reviewed LEMP and the revised draft licence, reflect a thorough review of all aspects which were previously discussed as well as the careful consideration of the outcomes of professional reports prepared by Path Line, IWS and the EPA.

With the active and cooperative participation of all above consulted experts all points of controversy were resolved during the course of the reviewing process.

It is recommended that the Authority resolve to:

approve the reviewed licence 11275 - Northern Balefill

(terms of licence: 1.9.2001-31.8.2002)."

• Ms Wagner's report to the Authority dated 17 August 2001;

The Authority decided to renew the licence. One of the conditions of the licence was in these terms:

"67-282: The Licensee must establish, maintain, operate and close the Premises in accordance with the IWS LEMP, except where inconsistent with the conditions of this Licence."

It is apparent from the terms of the resolution of the Authority made on 30 August 2001 and the terms in which Ms Wagner's recommendation is couched that the Authority did not, at its meeting on 30 August 2001, consider whether it would approve the LEMP. Instead, it was presented with the LEMP as a fait accompli, that is to say, as a document which had already been approved by Mr Roderick. The minute from Ms Wagner opens by stating that the LEMP had been approved and that the only issue submitted to the Authority for decision was approval of the terms of the renewal of the licence. The approval of the LEMP was presented as one of a number of facts which the Authority was to consider when determining whether to renew the licence and the conditions, if any, of that licence. Although it was plainly open to the Authority to examine the terms and conditions of the LEMP, it was not intended that it should vary them. No doubt the Authority was at liberty to decide to revoke the approval granted by Mr Roderick since it had power to revoke the delegation. However, it was not intended that it should. It is also apparent from the minutes of the Authority that it did not discuss the terms of the LEMP. The minutes show that its consideration of the renewal of the licence was quite brief - a period of seven minutes or less. It began its consideration of this question at 3.30pm and concluded it at 3.37pm, resolving to renew the licence. The resolution accorded with the terms of Ms Wagner's recommendation.

The argument advanced by Mr Kourakis QC is at first blush attractive. But, on further examination, I think it must fail. All of the first four licences which had been granted by the Authority had required IWS to construct, operate and maintain its facility at Dublin in accordance with the development authorisation and the LEMP. I therefore infer that, when granting those licences, the Authority itself approve the LEMP. There is no evidence to the contrary.

The LEMP is a detailed plan for the management by IWS of its facility at Dublin. It contains detailed provisions for that management. It is manifestly an important document. The LEMP had already been approved by the Authority when granting the first licence. The issue was whether the amended LEMP was satisfactory. It too was a detailed document. It was therefore appropriate that a delegate of the Authority should consider its detailed terms and conditions and approve it. The fact that the Authority relied on the approval by its delegate is demonstrated by the manner in which it determined whether the licence should be granted. It simply acceded to the recommendation of Ms Wagner that the licence be granted and included the condition that IWS establish, maintain, operate and close the site in accordance with the LEMP. It was, of course, open to the Authority to decide not to agree with Mr Roderick's acceptance of the LEMP. But it did not do so. Instead, it proceeded on the footing that Mr Roderick had approved the LEMP and required compliance with it as a condition of the renewal of the licence.

Furthermore, although a document called a Landfill Environmental Management Plan is not mentioned in the Environment Protection Act, that does not mean that it is not a function of the Authority to approve a document of that kind. A satisfactory LEMP was an incidental step in determining whether IWS was going to manage this waste disposal facility in a manner acceptable to the Authority. In other words, it was a necessary and incidental step in the process of determining whether the Authority should grant or refuse the licence.

For these reasons, I do not think that there was any invalidity in the delegation or the manner in which the licence was renewed.

The issues in this action could have been avoided if greater care had been taken by those advising the Governor and by the Agency and the Authority in determining the terms of the development authorisation and its conditions and the terms of the licence and its conditions. The drafting of both documents left a great deal to be desired. It cannot be stressed too much that a great deal of care must be taken when drafting any instrument by which any kind of development consent or authorisation is granted, be it under the Development Act or the Environment Protection Act or any other statute. There will be occasions when it will be necessary to enforce a development consent or authorisation. Unless the meaning of the instrument containing that development consent or authorisation is clear, it will not be possible to enforce its terms and conditions. In this case, the development authorisation should have stated the shredding of waste should occur before baling. It is desirable, particularly when granting approval to any development and to any major development or project, that the planning authority obtain legal advice on the terms of the approval so that it is clear what is being approved and so that there is no doubt as to the effect of any conditions. In this case, any doubts as to the process which had been approved, as well as any concerns as to the apparent inconsistency between Condition 1 in para (b) of the development authorisation, could have been avoided by a more careful drafting. It seems also that it was intended to be a condition of approval that IWS prepare the LEMP for the Authority to consider. Although intended, that was not an enforceable condition of the licence. Finally, planning authorities should realise that "Notes to Applicant" of the kind included in this development authorisation do not in any respect constitute an obligation on a developer which is capable of being enforced. All of these matters point to the desirability of planning authorities obtaining advice as to the terms and conditions of any development consent or authorisation.

For all of these reasons, the application is dismissed.

Development Act 1993

Environment Protection Act 1993

Development Act 1993

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Judgment (105 paragraphs)

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Legislation Cited (6)

Cases Cited (8)