The Next Generation (NSW) Pty Ltd v State of New South Wales

Background

1. In April 2015, Next Generation lodged a "State significant development" application under the EPA Act seeking development consent for the construction and operation of an energy from waste facility on land at Honeycomb Drive, Eastern Creek (the premises). The proposed facility would generate electricity from the thermal treatment of waste such as by burning or incinerating waste. The Independent Planning Commission (the "IPC") refused the application in July 2018.
2. On 14 January 2019, Next Generation filed "Class 1 proceedings" in the Land and Environment Court appealing the IPC's refusal of the application.
3. On 8 July 2022, the Protection of the Environment Operations (General) Amendment (Thermal Energy from Waste) Regulation 2022 (NSW) came into force. It inserted Pt 3A of Ch 8 into the Environment Operations (General) Regulation 2021 (NSW) (the "2021 General Regulation"). Part 3A of Ch 8 is identical to the Thermal Energy from Waste Regulation.
4. In August 2022, two of the respondents to the Class 1 proceedings, being the IPC and Blacktown City Council, filed Amended Statements of Facts and Contentions contending that the proposed development was inconsistent with Pt 3A of Ch 8 of the 2021 General Regulation. This inconsistency was said to arise as the proposed development was not to take place in one of the precincts nominated in (the equivalent of) reg 144 of the Thermal Energy from Waste Regulation where thermal energy from waste facilities were permitted to operate.
5. On 8 August 2022, Next Generation commenced separate proceedings in the Land and Environment Court's class 4 jurisdiction challenging the validity of Pt 3A of Ch 8 of the 2021 General Regulation.
6. On 1 September 2022, the Environment Operations (General) Regulation 2021 (NSW) was repealed and replaced by the Protection of the Environment Operations (General) Regulation 2022 (NSW) (the "2022 General Regulation"). Pt 3A of Ch 8 of the 2021 General Regulation was re-enacted as Pt 4 of Ch 9 of the 2022 General Regulation (i.e the Thermal Energy from Waste Regulation). Next Generation amended its summons in the Land and Environment Court to reflect that change.
7. On 24 November 2022, Preston CJ delivered the judgment the subject of this appeal (The Next Generation (NSW) Pty Ltd v State of New South Wales [2022] NSWLEC 138; "Next Gen").
8. On 16 December 2022, the State Environmental Planning Policy (Transport and Infrastructure) Amendment (Thermal Energy from Waste) 2022 (NSW) was made under s 3.29 of the EPA Act. The respondent, the State of New South Wales (the "State"), contends that this amendment is fatal to ground 2 of the appeal. The effect of this amendment and the debate over its relevance to this appeal is addressed below.

The Thermal Energy from Waste Regulation

1. Within Pt 4 of Ch 9 (of the 2022 General Regulation), reg 143 relevantly provides: 143 Prohibition on energy recovery from thermal treatment of waste (1) A person must not carry out, or cause or allow to be carried out, the thermal treatment of waste if - (a) it involves or results in energy recovery from the waste, and (b) one or more of the activities carried out at the premises are scheduled activities that require a licence. (2) A person must not carry out, or cause or allow to be carried out, work at a premises that purports to enable the activity prohibited by subsection (1) to be carried out at the premises. (3) An offence under this section is a strict liability offence.
2. Regulation 142 defines "thermal treatment" by reference to the definition in cl 50(1) of Sch 1 to the POEO Act (with certain activities exempted). That definition provides that "thermal treatment means the processing of wastes by burning, incineration, thermal oxidation, gasification, pyrolysis, plasma or other thermal treatment processes" (emphasis added). Regulation 142 also defines "waste" by reference to the definition in the POEO Act (although certain fuels are exempted). The Dictionary to the POEO Act has an extensive definition of "waste" which includes, for example, "any discarded, rejected, unwanted, surplus or abandoned substance" and "any substance prescribed by the regulations to be waste".
3. Regulation 144 provides for three exceptions to the prohibitions in reg 143, namely, work carried out at nominated "precincts" or "premises" (reg 144(1)), work that is an "established and operating activity" before 8 July 2022 (reg 144(3)) or work where the activity to be carried out "replace[s] the use of a less environmentally sound fuel" (reg 144(4)(a)) (along with other various other conditions which are not presently relevant: regs 144(4)(b)−(d)).
4. Regulation 145 provides: 145 Effect of prohibition on environment protection licences The EPA must refuse an application for the issue, transfer or variation of a licence if granting the application would purport to authorise an activity or work prohibited by this Part.
5. The "note" to this regulation states, "[a] licence cannot be refused if it is necessary for carrying out State significant development authorised by a development consent or approved State significant infrastructure - see the Environment Planning and Assessment Act 1919, sections 4.42 and 5.24." This note does not form part of the POEO Act (Interpretation Act 1987 (NSW), s 35(2)).

The Regulation-Making Power and the POEO Act

1. Section 323 of the POEO Act confers a power to make regulations. It relevantly provides: 323 Regulations (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) In particular, the regulations may make provision for or with respect to the matters set out in Schedule 2. (3) The regulations may create offences punishable by a penalty not exceeding - (a) 200 penalty units in the case of an individual, or (b) 400 penalty units in the case of a corporation. ... (5) Nothing in this section limits or restricts the conditions that may be attached to a licence, but any such condition that is inconsistent with a regulation has no force or effect. (5A) Despite subsection (5), a condition of a licence may be inconsistent with a requirement of the same kind in a regulation, but only to the extent that the condition imposes a more stringent requirement than the regulation. (emphasis added)
2. Subsection 323(2) extends the scope of the regulation-making power to the matters in Sch 2 to the POEO Act. Of relevance to regs 143 and 145 are the matters specified in cll 5 and 8 of Sch 2: 5 Waste (1) The operation of waste facilities, and the treatment, storage, processing, recovery, recycling, re-use or disposal of waste at waste facilities (whether or not they are required to be licensed under this Act). (2) The transportation of waste by persons (whether or not they are required to be licensed under this Act). (3) The collection, storage, creation, handling, processing, recovery, recycling, re-use and disposal of waste. (4) The construction or maintenance of containers, vehicles and vessels used for the transportation of waste. (5) The provision of information relating to the operation of waste facilities or the transportation of waste (whether or not they are required to be licensed under this Act). (6) Prohibiting or regulating the storage, processing, recovery, recycling, re-use or disposal of any waste. ... 8 Licences - generally (1) The issue, transfer, conditions, variation, surrender, review, suspension or revocation of licences. (2) Applications for the issue, transfer, variation or surrender of a licence (including the amendment of such applications). (3) Any matter that may be regulated by the conditions of a licence. (4) Imposing conditions on licences and revoking or varying conditions on licences (whether or not the conditions have been imposed by the regulations). (emphasis added)

The EPA Act

1. Ground 1(b) of Next Generation's appeal concerns an apparent inconsistency between reg 145 and ss 4.42(1) and 5.24(1) of the EPA Act. Relevantly, s 4.42(1) provides: (1) An authorisation of the following kind cannot be refused if it is necessary for carrying out State significant development that is authorised by a development consent under this Division and is to be substantially consistent with the consent - ... (e) an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997 (for any of the purposes referred to in section 43 of that Act)
2. There are certain presently immaterial exceptions to s 4.42(1), including that it does not apply during "any period after the first review of the licence under section 78" of the POEO Act (s 4.42(2)(c)).
3. Section 5.24 of the EPA Act is found within Div 5.2 which concerns "State significant infrastructure". Similar to s 4.42(1), s 5.24(1) provides that certain kinds of authorisations, which include an environment protection licence granted under Ch 3 of the POEO Act (s 5.24(1)(e)), cannot be refused if they are "necessary for carrying out approved State significant infrastructure and [are] to be substantially consistent with the approval".
4. As noted, the State sought to rely on the amendment made to the State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) which inserted Div 28 into Pt 2.3 as follows ("Div 28"): 2.171 Prohibited development (1) Development is prohibited if it - (a) involves, or is carried out to enable, the thermal treatment of waste involving or resulting in energy recovery from the waste, and (b) is on land identified on the Thermal Energy from Waste Prohibition Map - Greater Sydney, and (c) is prohibited by the Protection of the Environment Operations (General) Regulation 2022, Chapter 9, Part 4. (2) This section prevails to the extent of an inconsistency over - (a) another provision of this Policy, and (b) the provisions of another environmental planning instrument. (3) A word or expression used in this section has the same meaning as in the Protection of the Environment Operations (General) Regulation 2022, Chapter 9, Part 4. (4) …
5. The development prohibited by cl 2.171(1) appears to be co-extensive with the activity prohibited by the Thermal Energy from Waste Regulation (namely reg 143). Section 4.38(2) of the EPA Act provides that development consent cannot be granted in respect of State significant development "if the development is wholly prohibited by an environmental planning instrument".

Primary Judgment

1. The primary judge addressed five related contentions made by Next Generation concerning the validity of the Thermal Energy from Waste Regulation.
2. First, his Honour found that the Thermal Energy from Waste Regulation is "for or with respect to" matters that by the POEO Act are permitted to be prescribed, being the matters set out in cll 5(1) and (6) of Sch 2 to the POEO Act. [2] His Honour also found that the Thermal Energy from Waste Regulation was not inconsistent with the POEO Act, including Ch 3, in that it only "added other prohibitions with which a person must comply" in addition to those created by the licensing regime in Ch 3 of the POEO Act. [3] Next Generation's argument on appeal was specifically directed to this conclusion.
3. Further, the primary judge did not accept that reg 145 was inconsistent with s 55 of the POEO Act as his Honour found that reg 145 merely directs that the power to grant a licence conferred by s 55 is to be exercised in a particular way (and the procedure for refusal in s 55(2) can still be complied with). [4] Next Generation did not pursue this argument on appeal save for contending that, if reg 143 is invalid, then reg 145 is also invalid (along with the balance of the Thermal Energy from Waste Regulation).
4. Second, his Honour addressed the contention that reg 145 was inconsistent with ss 4.42 and 5.24 of the EPA Act by finding as follows: [5] "There may be circumstances where these provisions of the Thermal Energy from Waste Regulation and the EPA Act are in conflict, but that conflict is readily able to be resolved by determining which provision is to prevail in the event of inconsistency. On a proper construction, the provisions of the EPA Act prevail over s 145 of the Thermal Energy from Waste Regulation in the event of inconsistency."
5. This aspect of his Honour's reasoning is the subject of ground 2 of the appeal. Next Generation contends that it follows from the conclusion in the second sentence of this extract that reg 145 is at least partly invalid and declaratory relief to that effect should have been granted. The State contends that the effect of Div 28 is that there are now no "circumstances where these provisions of the Thermal Energy from Waste Regulation and the EPA Act are in conflict".
6. Third, the primary judge rejected the contention that, because the Thermal Energy from Waste Regulation restricts the carrying out of forms of treatment to waste at particular locations, it is inconsistent with so much of Ch 3 of the POEO Act which permits the licensing of scheduled activities at "any premises" (s 43). His Honour found that s 323 was "broad enough" to enable regulations to be made which addressed the thermal treatment of waste at particular locations. [6]

Ground 1(a): Inconsistency of Regulation with ss 43 and 48 of the POEO Act

1. Ground 1(a) of Next Generation's notice of appeal contends that the primary judge erred "in failing to conclude that Part 4 of Chapter 9 … was, in whole or in part, invalid by reason of… inconsistency with the [POEO Act] including, in particular, ss 43 and 48". This ground is related to ground 2, which contends that his Honour ought to have found that Pt 4 of Ch 9 was invalid, either in whole or in part. Ground 2 has no separate content.

Scope of Power to Make Regulations: Principles

1. In Shanahan v Scott (1957) 96 CLR 245 at 250; [1957] HCA 4, Dixon CJ, Williams, Webb and Fullagar JJ observed as follows in relation to a power to make regulations that is considered necessary or expedient for the administration of an Act or the carrying out its objects: "[S]uch a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."
2. The regulation-making power conferred by s 323 of the POEO Act is conditioned by the requirement that any regulations made must not be inconsistent with the POEO Act, although such a requirement would be otherwise implicit if not expressly stated (see Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1; [2012] HCA 46 at [54] per French CJ; "Plaintiff M47"). At least one form of inconsistency arises where the regulation in question varies, departs, or "alters, impairs or detracts from" the provisions of the empowering Act (Plaintiff M47 at [174] per Hayne J; see also at [134] per Gummow J).
3. The scope of the regulation-making power must be considered in light of the approach taken by the relevant statute in regulating the subject matter with which it deals. Thus, in Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402; [1951] HCA 42 ("Morton") the High Court stated (at 410): "The ambit of the [regulation-making] power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned. In an Act of Parliament which lays down only the main outlines of policy and indicates an intention of leaving it to the Governor-General to work out that policy by specific regulation, a power to make regulations may have a wide ambit. Its ambit may be very different in an Act of Parliament which deals specifically and in detail with the subject matter to which the statute is addressed. In the case of a statute of the latter kind an incidental power of the description contained in s. 164 [of the Excise Act 1901-1949] cannot be supposed to express an intention that the Governor-General should deal with the same matters in another way." (emphasis added)

Regulation 143: Required or Permitted to be Prescribed under the POEO Act

1. The principal focus of Next Generation's written and oral submissions was the contention that the Thermal Energy from Waste Regulation, especially reg 143, was "inconsistent" with the POEO Act and thus not authorised by s 323(1) (and therefore invalid). However, in its written submissions in reply [10] and oral submissions [11] an argument emerged which, if accepted, meant that reg 143 was not authorised by the regulation-making power i.e. it was not a regulation made "with respect to any matter" that by the POEO Act is "required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect" to the POEO Act (s 323(1)), including any matters set out in Sch 2 (s 323(2)).
2. Next Generation submitted that reg 143 was not a regulation for or with respect to either cll 5(1) or (6) of Sch 2 to the POEO Act. It contended that, although cl 5(1) concerns the operation of "waste facilities", it does not extend to the prohibition on conducting a waste facility and that while cl 5(6) authorises the making of regulations that include a prohibition, such a regulation can only concern "waste" and not "waste facilities". According to Next Generation, when cll 5(1) and (6) are read together, cl 5(1) is addressed to "waste facilities" but does not encompass its prohibition and cl 5(6) is directed to what may be done with waste other than at waste facilities. [12] Next Generation contended that reg 143 is "directed to prohibiting activities at 'waste facilities' ie facilities used for processing waste" and does not merely regulate an activity or right which otherwise exists (citing Co-operative Brick Co Pty Ltd v City of Hawthorn (1909) 9 CLR 301 at 307; [1909] HCA 56) (emphasis added). It is said to follow that reg 143 is not a regulation that makes provision for or with respect to any matter set out in Sch 2 to the POEO Act.
3. This contention can be disposed of briefly. As noted, the definitions of "thermal treatment" and "waste" mean that the "thermal treatment of waste" (as referred to in reg 143(1)) is a form of "processing… of… waste" (as referred to in cl 5(6) of Sch 2 to the POEO Act). When read with s 323 of the POEO Act, cl 5(6) confers a power to prohibit, regulate or do both, as well as to prohibit conditionally or unconditionally (Country Road Board v Neale Ads Pty Ltd (1930) 43 CLR 126 at 134-135; [1930] HCA 5).

(Alleged) Inconsistency Between Regulation 143 and Chapter 3 of the POEO Act: Submissions

1. Next Generation's principal contention is that reg 143 is "inconsistent" with the POEO Act in that it purports to proscribe what is "authorised" by s 43 of the POEO Act. [13] Next Generation submitted that s 43 demonstrates that the "purpose" of an environment protection licence is to "authorise the carrying out of" of certain activities. Next Generation contended that various provisions of Ch 3 of the POEO Act recognise that what is conferred by an environment protection licence is an "authority" to act and that the POEO Act implicitly recognises that an environment protection licence "brings with it an authority to carry out the activities the subject of the licence".
2. According to Next Generation, by proscribing the carrying out of activities that are within the scope of "authority" granted by an environment protection licence granted under Chapter 3 of the POEO Act, the Thermal Energy from Waste Regulation "varies or departs from the [POEO] Act because it proscribes that which the [POEO] Act authorises". To similar effect, it contended that the scheme of regulation of "controlled activities" (i.e. Sch 1 activities) contemplated by the POEO Act is regulated by conditions attached to licences, especially so far as "waste" and "waste facilities" are concerned. It submitted that the Thermal Energy from Waste Regulation varies or departs from the scheme of regulating controlled activities by "attach[ing] conditions on environment protection licences", "add[s] new and different means of carrying out the purposes of the [POEO] Act" and "attempt[s] to widen the purposes of the [POEO] Act".
3. The State submitted that the POEO Act evinces an intention that regulations made under it "are likely to have a wide degree of overlap… with the licensing regime" in Ch 3 such that the licensing regime is subject to significant modification by the regulations. The State submitted that the "authority" granted by a licence under Ch 3 is very limited in that its function is to preclude the operation of provisions, such as s 48, that make the conduct the subject of the licence an offence (citing South Australia v Tanner (1989) 166 CLR 161 at 171-172; [1989] HCA 3; "Tanner").
4. The State's submissions noted a number of offences under the POEO Act that incorporate a breach of the regulations where it is irrelevant whether or not the alleged contravenor possessed a licence. For example, s 117(1) of the POEO Act provides that it is an offence if a person "wilfully or negligently causes any controlled substance (within the meaning of the Ozone Protection Act 1989) to be emitted into the atmosphere in contravention of the regulations under that Act and in a manner that harms or is likely to harm the environment". The State submitted that the POEO Act evinces a clear intention that the licensing regime in Ch 3 and regulations made under the Act operate concurrently such that the latter may impose additional restrictions on some activity that is licensed under Ch 3, and in some cases prohibit it altogether.

Regulation 143 and Chapter 3 of the POEO Act are not relevantly inconsistent

1. The power to make regulations under s 323(1) of the POEO Act is circumscribed by the requirement that they not be "inconsistent" with the POEO Act. Ascertaining whether reg 143 is relevantly inconsistent with the POEO Act turns upon a consideration of two related matters: first, the extent of the "authority" conferred by a licence granted under Ch 3 and, second, what the POEO Act contemplates to be the scope of the regulation-making power. As noted, s 323 and the other provisions of the Act which concern the scope of the regulation-making power are to be considered when determining whether a regulation is relevantly inconsistent.
2. In seizing upon the phrase "authorise" in s 43(a)−(c) of the POEO Act, Next Generation relied on the observation of Gummow and Hayne JJ in Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42; [2012] HCA 16 at [122] that, "[a]s a matter of ordinary usage 'to authorise' is to clothe with authority, particularly legal authority, thereby give a right to act". Their Honours noted this possible meaning in the context of considering whether an internet provider had "authorise[d]" the doing of any act by its customers that comprised the copyright owned by another person for the purposes of s 101(1) of the Copyright Act 1968 (Cth). Their Honours also noted at [125] that other cases had concluded that "authorise" should be taken to mean "sanction, approve, [or] countenance", citing Falcon v Famous Players Film Co Ltd [1926] 2 KB 474 at 491. However, even if one accepts that "authorise" in this context means to "clothe with authority", it only begs the question, what legal authority does a licence granted under Ch 3 of the POEO Act confer?
3. The "authoris[ation]" to carry out scheduled development activities at any premises "conferred" by s 43(b) of the POEO Act is qualified by the words, "as required under section 48". Section 48 only "requires" an authorisation in the sense that, absent such authority, a person who occupies any premises at which scheduled activities are carried out is guilty of an offence. No other provision of Ch 3, or the balance of the POEO Act, expressly or impliedly, confers any form of legal permission much less any right on the holder of the licence. On its face, the "authority" conferred by such a licence is relatively limited. It is not an "authority" to engage in the scheduled activities generally but simply an "authority" in the sense of having a lawful excuse to do what s 48 otherwise prohibits.

Inconsistency Between Regulation 145 and the POEO Act

1. Next Generation's written submissions attacked the primary judge's reasons for rejecting the contention that reg 145 was inconsistent with s 55(1)(a) of the POEO Act (see above at [37]). The written submission contended that s 55(1)(a) confers a discretion to grant or refuse an application for an environment protection licence but reg 145 denies the power to do so. However, in oral submissions, Senior Counsel for Next Generation disclaimed any challenge to the validity of reg 145 on the basis of inconsistency with the POEO Act separate from that made to reg 143. Instead, it was submitted that if reg 143 was invalid on the basis of inconsistency, then it followed that reg 145 (and the balance of the Thermal Energy from Waste Regulation) was also invalid. [14] As I do not consider that reg 143 is invalid, that argument does not arise.

Conclusion on Ground 1

1. I would reject ground 1(a) of the appeal and the corresponding part of ground 2.

Ground 1(b): Inconsistency with the EPA Act

1. Ground 1(b) of Next Generation's notice of appeal contends that "[t]he primary judge erred in failing to conclude that Part 4 of Chapter 9 …. was, in whole or in part, invalid by reason of… inconsistency with the [EPA Act] including, in particular, s 4.42(1)(e)". As with ground 1(a), this ground is related to ground 2 which contends that his Honour ought to have found that Pt 4 of Ch 9 was invalid, either in whole or in part.
2. Next Generation's submissions in relation to this ground referred to the primary judge's findings that reg 145 was inconsistent with the provisions of the EPA Act noted above and that "[o]n a proper construction, the provisions of the EPA Act prevail over s 145 of the Thermal Energy from Waste Regulation in the event of inconsistency" (see [38]). [15] Next Generation submitted that, as the regulation-making power conferred by the POEO Act does not carry with it the power to amend other statutes, then "[r]egulation 145 was invalid ab initio to the extent to which it purported to prohibit that which the [EPA Act] required". Next Generation sought declaratory relief to reflect that conclusion. (Next Generation also submitted that the partial invalidity of reg 145 supported its contention that the invalidity of reg 143 warrants a conclusion that the entirety of the Thermal Energy from Waste Regulation is invalid. As I do not accept that reg 143 is invalid, it is not necessary to address this contention.)
3. The State accepted that reg 145 does not prevail over the provisions of the EPA Act set out above. The State noted that s 7(2) of the POEO Act provides that the Act prevails over any other Act or statutory rule to the extent of any inconsistency but that "a regulation made under the POEO Act only prevails over any statutory rule to the extent of any inconsistency". The State accepted it was implicit that the provisions of another Act, such as the EPA Act, prevail over a regulation made under the POEO Act to the extent of any inconsistency. The State submitted that the primary judge's reasons should be read as effectively preserving the operation of reg 145 by reading it down to remove any inconsistency as contemplated by ss 31 and 32 of the Interpretation Act.
4. As noted, the State also submitted that the effect of Div 28 is to remove the practical potential for there to be any inconsistency between reg 145 and the provisions of the EPA Act noted above. I address that contention separately below.

Inconsistency of a Regulation with another Act

1. The above provisions of the EPA Act were enacted on 1 March 2018 well before the Thermal Energy from Waste Regulation was made. The authorities reflect Next Generation's assumption that, in the absence of clear legislative authority, the regulation-making power conferred by s 323 of the POEO Act does not authorise the making of a regulation that is "inconsistent" with an existing statutory provision.
2. Thus, in De L v Director-General Department of Community Services (NSW) (1997) 190 CLR 207; [1997] HCA 14 ("De L"), the Director-General of the Department of Community Services applied to vacate an adverse costs order made in earlier proceedings in the High Court (De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640; [1996] HCA 5). Section 111B(1) of the Family Law Act 1975 (Cth) relevantly provided that the regulations may make such provision as is necessary or convenient to enable the performance of Australia's obligations, or to obtain for Australia any advantage or benefit, under an international Convention. Regulation 7 made under this power purported to preclude the High Court from making an adverse costs order against the Director-General. However, s 26 of the Judiciary Act 1903 (Cth) conferred on the High Court jurisdiction to award costs in all matters brought before the Court (including matters dismissed for want of jurisdiction).
3. In De L, Brennan CJ and Dawson J held that, in so far as reg 7 purported to confine the discretion conferred by s 26 of the Judiciary Act to preclude the making of a costs order against a State Central Authority, it was inconsistent with s 26. Their Honours addressed this inconsistency by reading down the regulation-making power in s11B(1) of the Family Law Act as follows (at 212): "Assuming that it would be constitutionally possible for the Parliament to authorise the making of a regulation that would amend or repeal a provision of an earlier Act of the Parliament, it would require express words to convey an intention that a general power to make regulations for a stated purpose authorised the repository to repeal or amend the Parliament's own enactments. Section 111B(1) does not purport to authorise the making of a regulation having such an effect. We would construe s 111B(1) as conferring a power to make regulations which are not inconsistent with any Act of the Parliament in force at the time when the regulations are made. Acts enacted subsequent to the making of the regulations and inconsistent with them would repeal them to the extent of the inconsistency." (emphasis added; citations omitted)

Resolution

1. As noted, both parties accepted the primary judge's conclusion that, on the state of affairs existing at the time of the primary judgment, reg 145 was inconsistent with s 4.42(1)(e) of the EPA Act, which concerned licences under Ch 3 of the POEO Act in relation to State significant development, and that the latter prevails over the former. Further, there is no basis for construing the regulation-making power to authorise the making of a regulation that is inconsistent with the provisions of another Act. To the contrary, and consistent with the approach of Brennan CJ and Dawson J in De L (see [77]), s 323(1) (and s 323(2)) of the POEO Act should be construed so that the regulation-making power does not extend to the making of regulations which are inconsistent with "any Act of the Parliament in force at the time when the regulations are made".
2. These conclusions potentially engage s 32(2) of the Interpretation Act. To construe reg 145 so that it does not purport to limit s 4.42 of the EPA Act would be an instance of reading down "general words or expressions" in reg 145 so that it is not applicable to inconsistent provisions of other legislation. However, this is not an instance where the regulation "was intended to operate fully and completely according to its terms, or not at all" (Pidoto at 108). Instead, this is a case where a reason "based upon the law itself can be stated for selecting" that limitation (Pidoto at 111), namely s 7(2) of the POEO Act, which implicitly accepts that a regulation made under the POEO Act does not limit the provisions of other statutes (although it is does prevail over subordinate instruments made under such statutes).
3. Even though I reject Next Generation's contention that reg 145 is partly invalid, the practical result is the same in terms of its (lack of) effect on s 4.42 (and s 5.24) of the EPA Act. Subject to considering various discretionary matters, it would be appropriate to make a declaration that reg 145 does not operate to preclude the granting of an environment protection licence under Ch 3 of the POEO Act in the circumstances provided for in s 4.42(1) of the EPA Act.
4. However, the State contended that no such declaration should be made because of the inclusion of Div 28 in the State Environmental Planning Policy (Transport and Infrastructure) 2021 as set out above (at [33]). It contended that "any practical possibility of a conflict between the [EPA] Act and the [Thermal Energy from Waste] Regulation is removed in respect of developments in the Greater Sydney area, including in respect of the appellant's proposal."

Proposed Orders

1. I propose the following orders: (1) The appeal be dismissed; (2) The appellant pay the respondent's costs of the appeal.

Endnotes

1. Next Gen at [35].
2. Next Gen at [73].
3. Next Gen at [74].
4. Next Gen at [75]−[76].
5. Next Gen at [80].
6. Next Gen at [35]−[36] and [77].
7. Next Gen at [39] and [78].
8. Next Gen at [40] and [79].
9. Section 164 of the Excise Act 1901-1949 provided: "The Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to this Act or for the conduct of any business relating to the Excise".
10. Appellants' Outline of Submissions in Reply at [10].
11. Tr 06/03/2023 p 12.
12. Appellant subs in reply at [10].
13. Applicant's subs at [20].
14. Tr 06/03/2023 p 2.20; p 30.25.
15. Next Gen at [80]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2023