Environment Protection (Impact of Proposals) Act 1974 - obligation of statutory authority to comply with procedures - whether agreement between statutory authority and Department constitutes exemption within meaning of para. 11 of Administrative Procedures Under the Environment Protection (Impact of Proposals) Act 1974 Order - status of agreement - whether proposal of a "proposed action" for purposes of Order.

Administrative Decisions (Judicial Review) Act 1977, s.5

Environment Protection (Impact of Proposals) Act 1974 ss. 5, 6

Administrative Procedures under Environment Protection (Impact of Proposals) Act 1974 - paras. 1, 2, 3, 11

instructed by: Gillis Delaney

Counsel for respondent: Mr W.R. Davison with

Mr P.J. Dunstan

instructed by: Houston Dearne & Associates

1. Appeal allowed.

2. Orders of the primary judge set aside.

3. Application dismissed with costs.

4. No order as to the costs of the appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal from a decision of a judge of the Court (Lockhart J) setting aside a decision of Australian Postal Corporation ("Australia Post") to proceed with the calling of tenders for a new post office at the corner of Bay and Chegwyn Streets, Botany. The Court's decision was given in proceedings instituted by the Council of the Municipality of Botany under the Administrative Decisions (Judicial Review) Act 1977. His Honour held that the decision to call for tenders had been made without regard to the requirements of the Environment Protection (Impact of Proposals) Act 1974 ("the Environment Protection Act") and to an Order made under s.6 of that Act. It will be convenient to refer to that Order as "the Administrative Procedures Order".

2. The following account of the facts which gave rise to the proceedings is taken from his Honour's judgment. Botany Post Office is about 60 years old. Australia Post has recognized for many years that the working conditions for staff at the post office are unsatisfactory and that it has limited facilities for satisfying the needs of customers. In 1981 Australia Post commenced a search for a suitable alternative site in the area upon which a new post office could be erected. In August 1984 a site was identified at the south-western corner of Bay and Chegwyn Streets, Botany within an area zoned "General Industrial 4(a)(1)" under Interim Development Order No. 19 Botany. Subject to ascertaining the views of the Council in relation to the proposal, Australia Post decided to purchase the site so that the construction of a new post office could proceed.

3. The view is held by Australia Post that it is under no obligation under Federal or State law to consult with local government authorities on either the siting or the nature of construction of post offices. However, its policy is to inform local authorities of the sites upon which it proposes to erect post offices and of the extent and nature of proposed post office buildings.

4. Having decided that the proposed site would be suitable for its purposes, Australia Post wrote to the Council on 14 August 1985 stating that it intended to purchase the site and that, should the purchase be completed, it was intended to construct the new post office building during the 1986/87 financial year. The letter stated that building plans were not yet available and that, inter alia:

"It would be appreciated therefore if Council would

give a formal expression of opinion to the proposed

establishment of a new Post Office on the ... site."

5. The Council replied by letter dated 8 November 1985 in which it stated:

"Council considered the request at its meeting of

4th November, 1985, and resolved that you be

advised that it has no objection to the subject

land being used as a Post Office; and that you

also be advised that such a proposal would require

the land to be rezoned.

Council, at this stage, has not resolved to proceed

with the rezoning, but will await further

notification from your Authority regarding your intentions."

6. The proposed site was then purchased and the purchase settled on 27 March 1986.

7. Mr. W.H. Broadbridge, the Manager for New South Wales of Australia Post, gave evidence to the effect that the site would not have been purchased if the council had objected to its use for post office purposes.

8. On 27 June 1986 the Council informed Australia Post that the Local Traffic Committee consisting of representatives of the New South Wales Police Department, the Department of Main Roads, the Urban Transit Authority, the "Local Member's" representative and the Council, had considered the proposal to establish the post office and had resolved:

"... that it does not favour the establishment of a

Post Office on the subject land as the traffic

conditions at the intersection of Bay Street and

Botany Road are considered to be critical and the

generation of additional traffic arising from the

establishment of the Post Office would adversely

affect the movement of traffic along Botany Road,

thus preventing it from performing its function as

an arterial road. Therefore, if Australia Post

intends to proceed with the development of a Post

Office at this location, it is considered that an

environmental impact study is necessary."

9. Meetings were subsequently held, apparently without success, between representatives of the Council and Australia Post in an effort to find a solution to the dispute which had arisen. Unsuccessful attempts were also made by Australia Post to find an alternative site for the new post office.

10. Plans for the proposed post office were lodged with the Council by Australia Post on 24 November 1986 but on 23 December 1986 the Council informed Australia Post that it had resolved to disapprove of the use of the proposed site for the erection of a post office.

11. On 2 February 1988 Australia Post wrote to the Council informing it that it was proceeding to call for tenders for a new building at the Bay and Chegwyn Streets site and that it expected to let a contract for the construction of the building during the 1988/1989 financial year. The Council replied stating that it was opposed to the proposal. Its opposition was expressed to be based upon its beliefs that the amount of traffic likely to be generated by the development would be unsatisfactory and that inadequate provision had been made for the parking of staff vehicles, as well as what it described as "the circumstances of the case and the public interest".

12. After further correspondence, the Council commenced proceedings challenging the decision to proceed with the calling of tenders. In substance, the Council's claim for relief was based upon the argument that in reaching the decision to call for tenders, Australia Post failed to comply with the administrative procedures laid down under the Environment Protection Act and the Administrative Procedures Order, and that non-compliance with those procedures vitiated its decision. This argument found favour with Lockhart J, who set aside the decision to call for tenders.

13. Sub-section 5(1) of the Environment Protection Act provides as follows:

"5. (1) The object of this Act is to ensure, to

the greatest extent that is practicable, that

matters affecting the environment to a significant

extent are fully examined and taken into account in

and in relation to -

(a) the formulation of proposals;

(b) the carrying out of works and other projects;

(c) the negotiation, operation and enforcement

of agreements and arrangements (including

agreements and arrangements with, and with

authorities of, the States);

(d) the making of, or the participation in the

making of, decisions and recommendations; and

(e) the incurring of expenditure,

by, or on behalf of, the Australian Government and

authorities of Australia, either alone or in

association with any other government, authority,

body or person."

14. Sub-section 6(1) provides that the Governor-General may, by order, approve procedures for the purpose of achieving the object of the Act. Sub-section 6(2) provides as follows:

"6. (2) Without limiting the generality of

sub-section (1), the approved procedures may

provide for -

(a) enabling the Minister to require the supply

of information for the purpose of

consideration, by or on behalf of the

Minister, of the necessity for environmental

impact statements or public environment reports;

(b) authorizing the Minister to direct the

preparation or obtaining, and the submission

of the Minister, of statements to be known

as environmental impact statements;

(ba) authorizing the Minister to direct the

preparation or obtaining, and the submission

to the Minister, of reports to be known as

public environment reports;

(c) defining, or authorizing the Minister to

determine, the matters to be dealt with by,

and the form of, those statements and reports;

(d) the making of those statements and public

environment reports available, in cases or

circumstances specified by or in accordance

with the procedures, for public comment;

(e) inquiries in accordance with this Act, and

action to be taken in respect of reports

resulting from such inquiries;

(f) the revision of those statements and public

environment reports;

(g) the examination of those statements and

public environment reports by or on behalf

of the Minister and the making by or on

behalf of the Minister of comments,

suggestions or recommendations concerning

the matters to which those statements and

public environment reports relate, including

suggestions or recommendations concerning

conditions to which approvals, agreements

and other matters should be subject; and

(h) exemptions from all or any of the

requirements of the procedures."

15. By an Order made on 29 May 1987 under s.6, the Governor-General approved of administrative procedures set out in the schedule to that Order. This is the Order that we have described as the Administrative Procedures Order. Paragraph 1.3 of the Order provides:

"Before a proposed action is completed, the

proponent shall do all things necessary to ensure

that these procedures are complied with in relation

to the proposed action."

16. "Proposed action" is defined in para. 1.1 as meaning "a matter referred to in any of the paragraphs of section 5 of the (Environmental Protection) Act".

17. The Administrative Procedures Order makes extensive provision for the supplying of information by a proponent intending to carry out a proposed action. Pursuant to para. 2.1 the proponent is obliged to supply the Minister or the Department with such information, inter alia, as is required by the Order or as is necessary for the purpose of the consideration by the Minister of the necessity for an environmental impact statement in relation to the proposed action.

18. Paragraph 2.2 provides that for the purposes of para. 2.1 the information required shall, to the extent appropriate in the circumstances of the case, be information:

"(a) summarizing any preliminary planning,

consideration or work undertaken in relation

to the proposed action and, in particular,

describing any feasible and prudent

alternative to the proposed action considered

by the action Minister or the proponent;

(b) describing the environment that is likely to

be affected by the proposed action and by

any feasible and prudent alternative to the

proposed action;

(c) indicating the potential impact on the

environment of the proposed action and of

any feasible and prudent alternative to the

proposed action, including any enhancement

of the environment;

(d) describing any safeguards or standards for

the protection of the environment intended

to be adopted or applied in connection with

the proposed action; and

(e) stating any investigations or studies

intended to be made of the possible impact

on the environment of the proposed action."

19. The Minister may require a proponent to provide such other information as is necessary for the purpose of considering the necessity for an environmental impact statement (para. 2.3).

20. The Department is required, as soon as possible after the information referred to in paras. 2.1 and 2.3 has been received in relation to a proposed action, to determine, on behalf of the Minister, either that an environmental impact statement is not required for the purpose of achieving the object of the Act or to refer to the Minister the question whether an environmental impact statement should be produced.

21. Provision is made (para. 11.1) for the making of a request to the Minister to exempt a proposed action, or a class of proposed actions, from all or any of the requirements of the procedures referred to in the Order and the Minister may, by written instrument, exempt a proposed action from the requirements of the procedures referred to in the Order (para. 11.4).

22. In 1978 the Minister and Australia Post reached an understanding which was embodied in a document titled "Statement of Understanding between Australia Post and the Department of Environment, Housing and Community Development on the application of the Environment Protection Act (1975) and its administrative procedures to Australia Post". It will be convenient to refer to this document as the "Statement of Understanding". This Statement of Understanding provided, inter alia, as follows:

"2. In the application of the Act and its

Administrative Procedures to the

responsibilities of the Australian Postal

Commission (hereunder Australia Post), subject

to paragraph 3 the following are not

considered to be matters likely to affect the

environment to a significant extent:

(a) movement of personnel, equipment,

vehicles or vessels for the conduct of

the functions of Australia Post;

...

(g) acquisition of sites for and acquisition

or construction of post offices other

than general post offices and mail centres;

...

3. A matter referred to in the preceding paragraph

may be regarded as affecting the

environment to a significant extent should any

of the following circumstances apply:

...

(b) local government objections of an

environmental nature are not resolved to

the satisfaction of both parties;

...

(j) the following matters (where applicable)

have been given consideration by

Australia Post and are considered to be

significant in relation to the proposed action:

...

. effects on traffic and pedestrian safety;

..."

23. The view was apparently taken by Australia Post that the Statement of Understanding absolved it from preparing environmental impact statements for the purchase and construction of post offices other than general post offices and mail centres. It was common ground between the parties that the proposed post office at Bay and Chegwyn Streets was neither a general post office nor a mail centre for the purposes of para. 2(g) of the Statement of Understanding. Before Lockhart J, Mr Broadbridge said in evidence that he took the view that the statement by the Council in its letter to Australia Post of 8 November 1985 that it "had no objection to the subject land being used as a post office" meant that the Council waived any rights which it may have had to protest on environmental grounds to the proposed purchase or construction of the post office.

24. It appears that the submissions made to Lockhart J on behalf of Australia Post were based substantially, if not wholly, on the proposition that the Statement of Understanding constituted an exemption for the purposes of para. 11.1 of the Administrative Procedures Order. His Honour held that the Statement of Understanding was not such an exemption, and we respectfully agree that he was correct to so hold. The Statement of Understanding does not on its face purport to be an exemption and we agree with his Honour that it cannot be construed as such. We agree with his Honour that the Statement of Understanding is no more than a guide to Australia Post as to its obligations under the relevant legislation.

25. Lockhart J said, and we agree, that the ultimate source of Australia Post's powers and obligations must, for relevant purposes, be found in the Environment Protection Act and the Administrative Procedures Order. His Honour was of the opinion that Australia Post had proceeded on the assumption that it was not bound to comply with the Administrative Procedures laid down by the Environment Protection Act and the Administrative Procedures Order because of the view which it had taken of the effect of the Statement of Understanding. Accordingly, when making the decision to call for tenders, Australia Post had, in his Honour's opinion, failed to take into account its obligations under the Environment Protection Act and the Administrative Procedures Order and had not observed the procedures that were required by law to be observed in connection with the making of its decision: vide s.5 of the Administrative Procedures (Judicial Review) Act.

26. Little, if any, attention appears to have been directed at the trial to the question whether Australia Post's proposal to build the post office fell within the definition of a "proposed action" within the meaning of para. 1.1 of the Administrative Procedures Order. Unless it fell within that definition, the provisions of the Order had no application to it. As we have indicated, a "proposed action" is a matter referred to in any of the paragraphs of s.5 of the Environment Protection Act. In this respect, it is critical to note that it is only "matters affecting the environment to a significant extent" which are referred to in s.5. Thus it is not an activity of a kind referred to in paras. (a) to (e) of sub-s.5(1) which is a "matter" for the purposes of that section or for the purposes of the definition of "proposed action". An activity of a kind referred to in paras. (a) to (e) must affect the environment to a significant extent before it comes within the purview of the section. That this is so seems to us to appear plainly from the terms of the section. To read the section in any other way would mean that the formulation of any proposal or the carrying out of any work, however trivial and however harmless to the environment, would be within the purview of the section and of the expression "proposed action". This cannot have been intended by the legislature.

27. In order to determine whether it was obligatory on Australia Post to comply with the terms of the Administrative Procedures Order it is first necessary to determine whether it was open to it, and to Mr Broadbridge on its behalf, to regard the building of the post office as a matter not affecting the environment to a significant extent. If that view was reasonably open on an objective assessment of the matter, and was in fact taken by Mr Broadbridge, it was not obligatory on Australia Post to observe the provisions of the Administrative Procedures Order.

28. There being no statutory indication of the weight to be given to any particular consideration, it was for Australia Post and Mr Broadbridge to determine the appropriate weight to be given to the various factors which had to be taken into account when deciding whether the post office would affect the environment to a significant extent: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at p 41; Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at p 375; Reg v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 at p 205; and Pickwell v Camden London Borough Council (1983) QB 962 at p 990. It cannot in our opinion be said, on the facts of this case, that a decision that the building of the post office would not affect the environment to a significant extent was manifestly unreasonable or was so unreasonable that no reasonable person could have come to it: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 K.B. 223 at pp 228-229; Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 at p 327; Bread Manufacturers of N.S.W. v Evans [1981] HCA 69; (1981) 38 ALR 93 at p 106; Newbury District Council v Secretary of State for the Environment (1981) AC 578 at pp 599-600.

29. The decision whether the building of the post office would affect the environment to a significant extent required a consideration of several factors. The factors tending to support the view that the environment would be affected to a significant extent included the fact that the post office would be likely to generate pedestrian and vehicular traffic with consequential affects on the movement of traffic, particularly vehicular traffic, on the surrounding roads. On the other hand, there were several matters which pointed to the contrary view. Not the least weighty of these matters was the fact that the Council had itself initially raised no objection to the building of the post office. Moreover, when the Council did object it limited its objections to considerations affecting traffic movement in Botany Road which is a block away from the subject site. At no stage did the Council advance any more general objections to the building of the post office. Another relevant matter was that the subject site was within an industrial zone which itself was adjacent to a commercial zone. The nearest residential development was some distance from the subject site.

30. We have referred to some only of the consider ations which it was open for a decision-maker in the position of Mr Broadbridge or Australia Post to take into account in deciding whether the building of the post office would affect the environment to a significant extent. In our opinion it cannot be said that it was not open to them to come to the view that it would not. Accordingly, we do not think that the Council was entitled to the relief it sought since the building of the post office was not shown to be a "proposed action" within the meaning of the definition in para. 1.1 of the Administrative Procedures Order. It was therefore not obligatory on Australia Post to comply with the provisions of the Order.

31. Counsel for the respondent submitted that even if it were held that it was open to Australia Post and Mr Broadbridge to come to the view that the building of the post office would not affect the environment to a significant extent, they nevertheless failed to consider whether that was the case because they assumed that there was no obligation to comply with the terms of the Administrative Procedures Order. We do not think this argument can succeed. Mr Broadbridge furnished the Council with a statement of the reasons for the decision to proceed with the construction of the post office. Included in that statement was the following:

"9. Before a decision to proceed with the erection

of the proposed post office building was made,

I sought advice on the effect, if any, of the

Environment Protection (Impact of Proposals)

Act, 1974. My advice was that Australia Post

was not obliged to prepare an environmental

impact statement for the proposed post office.

Notwithstanding this advice, matters that may

have affected the environment as far as this

proposal was concerned were taken into account

and fully examined (eg. effect on traffic

flow). The Council's objections to the use of

the site and the design of the building as

outlined in its letter of 23.12.86, were also

given consideration, however I formed the view

that the proposed building would not affect the

environment to a significant extent."

32. In any event, it is plain from a consideration of all the evidence that the question whether the building of the post office would adversely affect the environment of the area within which it was to be constructed was always a matter which engaged the attention of Australia Post and Mr Broadbridge. It is clear that at the time tenders were called Mr Broadbridge well appreciated that the Council was of the view that the building of the post office would, or might, adversely affect the environment and that, having considered the Council's view, he disagreed with it.

33. On the hearing of the appeal it became apparent that there was some uncertainty at the bar table as to whether the ground upon which, in our opinion, the application for judicial review should have failed was relied upon by Australia Post at the trial. The fact that the ground is not dealt with in his Honour's reasons leads us to conclude that it was not. This conclusion is confirmed by the fact that neither the notice of appeal nor the amended notice of appeal clearly identified the ground. Nevertheless we gave leave to Australia Post to further amend its notice of appeal so as to clearly raise the ground. We further gave leave to the Council to tender further evidence on the hearing of the appeal lest it might have been able to improve its position at the trial by tendering additional evidence. In pursuance of this leave, counsel for the respondent further cross-examined Mr Broadbridge but we do not think the additional evidence he gave materially assists the Council's case. Mr Broadbridge maintained that he had considered the impact which the post office would have on the environment and had, indeed, held an on-site meeting in February 1987 with representatives of the Council to discuss its objections. We see no reason to conclude that he did not give consideration to the question whether the building of the post office would affect the environment to a significant extent. The conclusion which he reached on that question was open to him.

34. Accordingly, we think the appeal should be allowed and the orders of Lockhart J set aside. In lieu of the orders made by Lockhart J the application should be dismissed with costs. However, we do not think Australia Post should receive its costs of the appeal. We are of the opinion that it has succeeded on a ground neither adequately (if at all) argued before Lockhart J nor raised on the hearing of the appeal until the last minute. In these circumstances we think there should be no order as to the costs of the appeal.