Supreme Court of WA|2006-11-17|Before: Mr P, Commission J

Water Corporation v Chief Executive Officer of The Department of Environment [2006] WASC 256 (17 November 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WATER CORPORATION -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT [2006] WASC 256

CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT

Statutes - Environmental Protection Act 1986 (WA), s 51C, Item 1 Sch 6 - Clearing of vegetation to give effect to "requirement to clear under a written law" - Whether includes clearing not expressly required by or under written law but which necessary in order to carry out other functions under written law - Meaning of "require" - "Requirement"

Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126

Sutherland Shire Council v Telope Pty Ltd (1993) 85 LGERA 103

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297

Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission [1977] HCA 55; (1977) 139 CLR 117

1 MASTER NEWNES: This is an application by the plaintiff for a declaration that it is not required to obtain, and is exempt from obtaining, clearing permits pursuant to Div 2 ("Div 2") of Part V of the Environmental Protection Act 1986 (WA) (the "EP Act") in order to clear native vegetation on or around its pipes, sewers, drains and other facilities. The defendant, on the other hand, contends that a permit under the EP Act must be obtained where the clearing of native vegetation is undertaken by the plaintiff.

2 The issue is of some practical importance. As at 2005, the plaintiff serviced over 1,000,000 properties State-wide and had a network of 30,766 kilometres of water pipes, 13,417 kilometres of sewers, 2814 kilometres of drains and channels and over 400 water and wastewater treatment plants. The metropolitan area of Perth is itself serviced by eight groundwater schemes, 10 dams having 2863 square kilometres of catchment and a water reclamation plant.

3 The plaintiff undertakes the clearing of native vegetation for the purposes of building new facilities and maintaining existing facilities. In relation to the latter, periodic re-clearing of vegetation is necessary, among other things, to prevent the blockage of pipes due to root ingress, to prevent spillways being blocked and facilities damaged, and to allow access to the various facilities for the purposes of repair and maintenance. For instance, the plaintiff has approximately 47 kilometres of pipes, channels and drains where a clearance of approximately six metres either side is required for the construction and maintenance of those facilities, with re-clearing being required anywhere from annually to every 10 years, depending on the type of vegetation concerned. The plaintiff estimates that, on average, approximately 2000 hectares needs to be cleared or re-cleared annually.

4 The plaintiff says that unless that clearing or re-clearing is carried out as and when necessary, it cannot perform the duties required of it by statute. It is not practical to obtain a permit under the EP Act on each occasion that clearing needs to be carried out, given the amount of clearing involved and the average time involved in obtaining a permit. Often it is necessary for the clearing to be done sooner than the time it would take to obtain a permit; in some cases it is necessary for the plaintiff to clear vegetation immediately. If the plaintiff were required to obtain a permit in each instance where clearing is required to be carried out, it would be unable to perform a number of its statutory functions.

5 Against that background, it is necessary to turn to the relevant statutory framework. The EP Act, by s 51C, provides as follows:

"A person who causes or allows clearing commits an offence unless the clearing -

(a) is done in accordance with a clearing permit;

(b) is of a kind set out in Schedule 6; or

(c) is of a kind prescribed for the purposes of this section and is not done in an environmentally sensitive area."

6 Item 1 of Sch 6 ("Item 1") of the EP Act provides for "clearing that is done in order to give effect to a requirement to clear under a written law".

7 In s 51A of the EP Act, "clearing" is defined to mean, in effect, the destruction, removal or doing of any other substantial damage to some or all of the native vegetation in an area.

8 The question on this application was whether clearing carried out by the plaintiff for the purpose of enabling it to carry out the functions required of it by statute was done "in order to give effect to a requirement to clear under a written law".

9 The plaintiff is a body corporate established pursuant to s 6 of the Water Corporation Act 1995 (WA) (the "Water Corporation Act"). The Water Corporation Act sets out the statutory functions, powers and obligations of the plaintiff. There are, in addition, other Acts which deal with certain powers, functions or duties of the plaintiff.

10 It is convenient first to turn to the relevant provisions of the Water Corporation Act. The functions of the plaintiff are dealt with principally in Pt 3 of that Act. Section 27(1) provides that, among others, the functions of the plaintiff are:

"(a) to acquire, store, treat, distribute, market and otherwise supply water for any purpose;

(b) to collect, store, treat, market and dispose of wastewater and surplus water;

(c) to undertake, maintain and operate any works, system, facilities, apparatus or equipment required for any purpose referred to in paragraph (a) or (b) ..."

11 Section 27(2) provides that, among others, it is a function of the plaintiff:

"...

(b) to do anything that the [plaintiff] determines to be conducive or incidental to the performance of a function referred to in subsection (1); or

(c) to do anything that it is authorised to do by any other written law."

12 Section 27(3) provides:

"Where the performance of any of the [plaintiff's] functions referred to in subsection (1)(a) or (b) requires that the [plaintiff] hold a licence under the Water Services Licensing Act 1995, the [plaintiff] may only perform that function in accordance with the terms and conditions of such a licence."

13 Section 29(1), relevantly, provides:

"(1) The [plaintiff] may do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2) Without limiting subsection (1) or the other powers conferred on the [plaintiff] by this Act or any other Act, the [plaintiff] may for the purpose of performing any function -

(a) acquire, hold, manage, improve, develop and dispose of any real or personal property;

(h) carry out any investigation, survey, exploration or boring;

(4) If the generality of any power conferred on the [plaintiff] by this Act is restricted by any provision of the Water Agencies (Powers) Act 1984 or of a relevant Act within the meaning of that Act, that restriction applies, despite this Act."

14 It is necessary, then, to turn to the Water Agencies (Powers) Act 1984 (WA) (the "WAP Act"). The WAP Act confers extensive powers on the plaintiff. Section 82 provides, in effect, that, for the purposes of the WAP Act and certain other Acts, the plaintiff may carry out works that are related to the conservation, protection and management of water resources, and subject to the provisions of an operating licence granted under the Water Services Licensing Act 1995 (WA) (the "WSL Act"), carry out works that are intended to provide, or are related to the provision of, water services.

15 Section 83 of the WAP Act empowers the plaintiff, among other things, to enter upon any land or premises and "do all such things as may be necessary or convenient for the construction, maintenance, repair, alteration ... or removal of any works for the provision of water services and works ancillary to the provision of water services": s 83(1). For those purposes the plaintiff may "remove or use any earth, rock, trees and other things taken from any land": s 83(2)(b)(ii). In doing so, the plaintiff is obliged to "ensure that so far as is reasonable and practicable ... as little detriment or inconvenience is caused and as little damage is done as is possible": s 83(3)(b).

16 The plaintiff has functions and obligations under the WSL Act. That Act establishes a scheme for the licensing of providers of water services. The plaintiff has an operating licence under s 16 of the WSL Act.

17 Section 18 of the WSL Act provides, so far as relevant, that a person must not provide a water service in a controlled area except under the authority of an operating licence. The operating licence may specify the water service works that are to be undertaken or operated for the provision of water services.

18 Section 32 of the WSL Act provides that it is a condition of every licence that the licensee is, subject to that Act, to provide the water services and undertake, maintain and operate any water service works specified in the licence. Section 35 of the WSL Act provides that a licensee may interrupt, suspend or restrict the provision of a water service "if in the licensee's opinion it is necessary to do so because of an accident, emergency, potential danger or other unavoidable cause."

19 Section 38 of the WSL Act provides that minimum technical standards may be set for the provision of water services and for the undertaking, maintenance and operation of water service works. It is a condition of every licence that the licensee is to comply with the technical standards.

20 Under s 39, if a licensee contravenes the operating licence and fails to rectify the default after service of a notice on it by the relevant authority, the licensee may, among other things, be reprimanded or ordered to pay an amount of up to $100,000. Section 42 provides that the Governor may cancel a licence if, among other things, he or she is satisfied that the licensee has failed to comply with the terms of the licence.

21 The plaintiff's operating licence provides that the plaintiff shall observe the standards and principles with respect to the provision of water services set out in Sch 7 of the WSL Act. In Sch 7, various standards and principles for the provision of water services are prescribed, including that the plaintiff shall ensure that on a rolling 12 month basis at least 99.8 per cent of customers will not experience a wastewater overflow on their property which results from any failure of the sewerage assets owned or operated by the plaintiff, that there are prescribed standards for urban drainage scheme infrastructure to ensure that peak flows for stormwater do not overflow, and that the plaintiff shall endeavour to operate and maintain its rural drainage infrastructure so that the period of inundation to land adjacent to a drain forming part of the system should be a maximum of 72 hours.

22 There are other specific statutory requirements which affect the activities of the plaintiff. The plaintiff is, among other things, required to keep sewers properly cleared: s 32 Metropolitan Water Supply Sewerage and Drainage Act 1909 (WA) (the "MWSSD Act"); keep sewers cleansed: s 24(1) of the Country Towns Sewerage Act 1948 (WA) (the "CTS Act") and to provide particular works or services, such as hydrants: s 45 of the MWSSD Act.

23 It was submitted that it is established that the functions of a government department that are provided for under statute impose legally binding duties on that department: Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126.

24 Senior Counsel submitted that the expression "requirement to clear" under Sch 6 must be given a wide meaning in order to give effect to the intention of the legislature. If a narrow meaning were to be given to that expression, it would severely restrict the field of operation of the exemption in Item 1 and render it devoid of any practical application.

25 It was argued by Senior Counsel for the plaintiff that where the plaintiff had to carry out clearing in order to perform any of its functions or obligations under any Act, it fell within Item 1, so that no permit was required to carry out the clearing. That is to say, that such clearing was done "in order to give effect to a requirement to clear under a written law".

26 Senior Counsel submitted that, in the context, the reference to "a requirement to clear" under s 6 of the EP Act means "a need" to clear. The legislative purpose of the exemption is to ensure that where a public authority needs to clear land in order to fulfil its statutory functions or duties under another law, it is not prevented from doing so by having to apply for a clearing certificate, which may be refused thus preventing it from fulfilling its statutory obligations. In the present case such a refusal would not only prevent the plaintiff fulfilling its obligations, but may, for instance, involve cancellation of its operating licence and/or the payment of substantial fines under the WSL Act.

27 The legislative purpose to ensure that public authorities are not hindered or prevented from fulfilling their statutory functions and obligations is confirmed by s 74B of the EP Act. That relevantly provides:

"(1) It is a defence to proceedings under this Part for causing serious environmental harm or material environmental harm if the person charged with that offence proves that the environmental harm was, or resulted from, an authorised act which did not contravene any other written law.

(2) For the purposes of subsection (1) an act was authorised if it was -

(a) done in accordance with an authorisation, approval, requirement or exemption given in the exercise of a power under another written law;

(b) done in the exercise by a public authority, or a member, officer or employee of a public authority, of a function conferred under another written law;

28 Accordingly, if, without having obtained a clearing permit, the plaintiff cleared native vegetation in order to repair or maintain a pipeline or undertake other works which it was required to do in order to perform its statutory functions, it would have a defence under s 74B. That indicates that the EP Act is not concerned with such activities and reflects the purpose of Item 1.

29 It was submitted, in the alternative, that if the expression, "requirement to clear", means, "an obligation to clear", such obligations, while not expressly stated, are necessarily implied from the other statutory duties and obligations of the plaintiff. The plaintiff is clearly obliged to repair and maintain its works, as well as undertake works in the performance of its functions. The obligation to repair and maintain works and to carry out other works required by the plaintiff in performing its functions necessarily involves an obligation to "do all things necessary or convenient to be done for or in connection with the performance of its functions": s 29(1) of the Water Corporation Act. It is "reasonably necessary" for the plaintiff to clear native vegetation from time to time for such purposes.

30 Senior Counsel argued that where the legislature requires the plaintiff to obtain a licence or permit to enable it to perform any of its functions, the relevant legislation expressly says so. In support of that submission, counsel referred to s 27(3) of the Water Corporation Act which provides that, where the performance of any of the plaintiff's functions under s 27 require it to hold a licence under the WSL Act, the plaintiff may only perform that function in accordance with the terms and conditions of such a licence; to s 11 of the Country Areas Water Supply Act 1947 (WA) (the "CAWS Act") which prohibits the plaintiff from diverting, intercepting or storing any water from an artesian or certain other wells except in accordance with a licence obtained under the Rights in Water and Irrigation Act 1914 (WA) (the "Rights in Water Act"); to s 12C of the CAWS Act, which provides that clearing carried out in a catchment area is not an offence under that Act if carried out pursuant to a clearing licence issued under that Act; and to s 14 and s 57EA of the MWSSD Act, s 14 of the MWSSD Act providing that the plaintiff shall not divert, intercept or store water coming from other watercourses and shall not exercise that power in respect of water covered by the Rights in Water Act, except under the authority of a licence issued under that Act, and s 57EA similarly providing that the plaintiff may take any water found under land except where the water is covered by the Rights in Water Act, in which case it can only do so under the authority of a licence issued under that Act.

31 It was submitted that it is inconceivable that the legislature would have expressly included specific requirements of this nature but omitted any reference to restrictions intended to be imposed on the plaintiff's functions by s 51C of the EP Act. It could never have been intended that the capacity of the plaintiff to carry out the duties required of it under statute should be subject to it obtaining clearing permits from the defendant.

32 It was submitted on behalf of the defendant that Item 1 does not apply to clearing carried out by the plaintiff under the legislation referred to. The written laws relied upon by the plaintiff do not impose any "requirement" for clearing. To fall within Item 1 it is not sufficient that the clearing is done for the purposes of giving effect to a requirement under a written law. It is necessary that the requirement under the written law can be characterised as a "requirement to clear".

33 In order to be so characterised it is first necessary that what arises under the written law is a "requirement". That is, in this context the written law must impose an obligation rather than merely conferring some discretionary power or authority. The functions and powers under the Water Corporation Act and the WAP Act do not impose obligations on the plaintiff but confer powers which the plaintiff may exercise for the purposes of performing its functions. They do not impose any "requirement" or obligation on the plaintiff to carry out clearing.

34 Secondly, it is necessary to be able to characterise the requirement imposed under a written law as a requirement "to clear". For a requirement to be so characterised it must emerge from the terms of the law or instrument made under the law that it creates an obligation to undertake an activity which falls within the definition of clearing. It is not sufficient that clearing may be practically or economically necessary or desirable for the fulfilment of an obligation to undertake some general function, such as the provision of water services. Thus the provisions of the WSL Act, the MWSSD Act and the CTS Act do not impose any requirement that can be characterised as a "requirement to clear under a written law". Nor do the terms of the operating licence issued to the plaintiff impose any such requirement.

35 It was submitted that if the plaintiff's construction of Item 1 were accepted, it would render redundant a number of the other exemptions set out in Sch 6, by which clearing carried out under specific statutory provisions was expressly exempt. Thus, for example, Item 3 exempts clearing by the Department in the performance of its function of managing land under s 33(1)(a) of the Conservation and Land Management Act 1984 (WA); Item 8 exempts clearing under a production contract or road contract entered into and having effect under the Forest Products Act 2005 (WA); and Item 11 exempts clearing done under s 34(a), (c) or (h) of the Fire Brigades Act 1942 (WA) (the "Fire Brigades Act"). Section 34 of the Fire Brigades Act, in effect, empowers the Director or person in charge of the Fire and Emergency Services Authority, in the case of a fire or hazardous material incident or to effect a rescue, to take any measures that seem expedient or necessary for the protection of life and property and for purpose of extinguishing or controlling a fire, confining or ending a hazardous material incident or rendering the site of the incident safe, or carrying out a rescue operation.

36 Counsel also referred to certain provisions of the Bush Fires Act 1954 (WA) (the "Bush Fires Act") which were the subject of specific exemption under Item 10 of Sch 6, namely the provisions dealing with burning off permitted under that Act and the power of a bush fire officer to clear or cause firebreaks to be cleared and, for the purpose of preventing or controlling a bush fire, to take all steps he considers expedient or necessary for the protection of life or property. There was, however, no specific exemption in relation to s 33 of that Act, which empowers a local government to require a landowner to clear firebreaks, such an exemption presumably being considered to be unnecessary on the basis that such clearing would fall within Item 1.

37 It was further submitted that the terms of Item 1 are to be contrasted with Item 2(d) of Sch 6 which exempts "clearing that is done ... in the exercise of any power conferred under this Act". It was submitted that if Item 1 was intended to have the meaning contended for by the plaintiff, it is to be expected that similar language would be used in Item 1 in respect of clearing in the exercise of any power under any other Acts. Similarly, the wording in s 74B(2)(a) of the EP Act was to be contrasted with the terms of Item 1.

38 Counsel for the defendant argued that it was consistent with the objects of the EP Act that the plaintiff should operate pursuant to its requirements. Section 5 of the EP Act provides that it prevails over other legislation to the extent of any inconsistency. Section 51T provides that the clearing provisions of the EP Act operate in addition to requirements for clearing authorisation under other legislation.

39 It was submitted that underlying the plaintiff's case was the proposition that any limitations or licensing obligations affecting the performance of the plaintiff's statutory functions were to be found exclusively in the Water Corporation Act. That was simply untenable. There was obviously an array of licensing systems with which the plaintiff had to comply contained in other legislation.

40 It was submitted that the claim by the plaintiff that the scale and extent of its activities are such that the volume of clearing permits required, and often the circumstances in which they are required, could not be expected to be processed to allow the plaintiff to carry out its statutory obligations was not made out.

41 In the first place, the EP Act contemplated the grant of a "purpose permit" for the clearing of different areas from time to time for a specified purpose: s 51E(1)(b)(ii) and s 51E(8). The plaintiff has sought and been granted purpose permits for some of its activities. It is not therefore the case that a separate permit is required for each occasion on which the plaintiff undertakes clearing.

42 Secondly, s 51C(c) of the EP Act provides that regulations may exempt further kinds of clearing in areas other than in environmentally sensitive areas, and therefore contemplates further exemptions to ameliorate any particular difficulties in the operation of the relevant provisions of the EP Act. That power has already been exercised in relation to infrastructure maintenance activities in the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA).

43 Thirdly, other provisions of the EP Act impose substantial requirements on the plaintiff of a kind comparable to that imposed by s 51C. Counsel referred to the requirement for a proposal to be submitted where an activity is undertaken that may have a significant effect on the environment: s 38; that where "prescribed premises" are to be operated or developed, a licence must be obtained or a work approval issued under s 55 and s 57; and where certain kinds of facilities, including a water treatment facility, are operated, the facility must be a registered facility under reg 5B. Other facilities such as sewerage pumping stations may be registered under reg 5A in order to avoid the requirement to be licensed.

44 It was submitted that the requirement to obtain a clearing permit is no more onus than the requirement to obtain those other authorisations, which the plaintiff has in fact obtained. Moreover, the plaintiff has been able to continue to perform its functions since 8 July 2004, when s 51C came into operation, notwithstanding the requirement to obtain clearing permits.

45 It was further submitted that if the Court were to accept the plaintiff's arguments as to the construction of Sch 6, it would not be appropriate to grant declaratory relief in the terms sought. The proposed declaration does not identify the "clearing undertaken by the plaintiff" to which it relates. In any event, a declaration in general terms would leave open the question of whether particular clearing was necessary so as to fall within the terms of the declaration. Accordingly, such a declaration would not finally determine any particular right or duty of the plaintiff.

46 The EP Act is to be given a construction that would promote its underlying purpose or object as that appears from the Act, in preference to one that would not promote that purpose or object: Interpretation Act 1984 (WA), s 18.

47 The object of the EP Act as described in s 4A is to protect the environment of the State, having regard to a number of principles that are set out. To that end, the EP Act binds the Crown: s 4, and the provisions of the EP Act prevail over any other written law to the extent of any inconsistency: s 5.

48 Part II of the EP Act continues the Environmental Protection Authority and prescribes its powers and functions, and deals with the staffing and administration of the Department of the Environment. Part III deals with environmental protection policies, which may be made where it is necessary or desirable for the protection of any portion of the environment or for the prevention or control of pollution or environmental harm, and it contains detailed provisions dealing with the process by which environmental protection policies may be made and approved. An environmental protection policy may apply to the whole of Western Australia or any specified portion of it. Once an environmental protection policy is approved it has the force of law: s 33(1). Part IV deals with the environmental impact assessment of proposals which are likely to have a significant affect on the environment. It provides, in effect, that any such proposals must be referred by the body making the decision on the proposal to the Environmental Protection Authority to enable the Authority to decide whether it will assess the proposal and provide a report to the Minister on whether or not it should proceed. Part V deals with environmental regulation and includes pollution and environmental offences, clearing of native vegetation and the regulation of certain types of premises. Part VI contains provisions dealing with the enforcement of the Act and Part VIA deals with legal proceedings for offences and with penalties. Part VII deals with appeals against decisions made under the Act. Part VIIA deals with collection of a landfill levy and Part VIIB establishes a waste management body to carry on certain waste management operations. Part VIII contains provisions of a general nature.

49 Section 51C is contained in Div 2, which deals with the clearing of native vegetation. The effect of s 51C is that clearing of native vegetation is prohibited unless it falls within one of the categories of exemption in Sch 6 or prescribed by regulation, or is carried out in accordance with a clearing permit issued by the defendant under s 51E.

50 In considering an application for a clearing permit, or the amendment of a clearing permit, the defendant must have regard to the clearing principles set out in Sch 5 to the EP Act: s 51O. Schedule 5 sets out, in effect, environmental circumstances in which native vegetation should not be cleared. The defendant must also ensure that the permit, or amended permit, is consistent with any approved environmental policy under s 31: s 51P.

51 A clearing permit may be issued subject to conditions: s 51H, a non-exhaustive list of which is set out in s 51I. There is a right of appeal against conditions imposed on a permit: s 101A(1)(b). A clearing permit may be amended: s 51K, or revoked or suspended where a person has breached or is unwilling or unable to comply with its conditions: s 51L, s 51M.

52 Importantly, s 51T provides that any authorisation under other enactment in relation to the clearing of land is not affected by Div 2 and the provisions of Div 2 are in addition to any other authorisation. It is therefore clear that Div 2 is intended to provide an overarching legislative scheme for the protection of native vegetation. Accordingly, a clearing permit obtained under some other legislation does not relieve a person of the requirement to obtain, in addition, a permit under the EP Act. It therefore envisages that it may be necessary for a person to obtain more than one permit in order to clear native vegetation in some areas.

53 Section 51E deals with the manner in which applications for clearing permits are to be dealt with. A person may apply for a permit for the clearing of a specified area (an "area permit") or of different areas from time to time for a specified purpose (a "purpose permit"). An application for an area permit can be made by the owner, or a person about to become the owner, of the land in question. A purpose permit can be made by the person by or on whose behalf the clearing is to be done. An area permit must set out the areas to be cleared and may continue in force for up to two years. A purpose permit must describe the purpose, and the principles and criteria to be applied and the strategies and procedures that are to be followed in relation to the clearing. It may continue in force for up to five years. Contravention of the conditions of a clearing permit is an offence.

54 In considering an application for a clearing permit the defendant must have regard to the clearing principles set out in Sch 5 to the EP Act. The defendant must invite any public authority or any person the defendant considers has a direct interest in the application to comment on it and the defendant must advertise it: s 51E(4).

55 It was submitted on behalf of the plaintiff that the legislative purpose of the exemption in Item 1 was to ensure that public authorities were not prevented from fulfilling their statutory duties by having to apply for a permit which was necessary for the performance of those duties but which might be refused. Accordingly, "requirement to clear" must be given a wide meaning in order to give effect to that legislative intent.

56 The noun "requirement" is defined, relevantly, in the Shorter Oxford Dictionary to mean "a thing required or needed, a want, a need". In the Macquarie Dictionary it is defined to mean "that which is required; a thing demanded or obligatory ... a need". In Sutherland Shire Council v Telope Pty Ltd (1993) 85 LGERA 103 at 106, Gleeson CJ observed that the word "require" is not inflexible and usually takes its meaning from its context.

57 In my view, in the present context the phrase "requirement to clear under a written law" in Item 1 refers to an obligation under a written law to clear; that is, the clearing itself must be an obligation imposed by or under a written law, rather than a need which arises from some other obligation imposed by or under the written law.

58 That, it seems to me, is consistent with the approach taken in Sch 6 and with the object and purpose of the EP Act. The EP Act is plainly intended to provide a comprehensive, overarching, framework for the protection of the environment in Western Australia and in that regard to regulate the activities of both the private and public sectors. In relation to the clearing of native vegetation, under the EP Act the only clearing permitted is clearing for which a permit system has been obtained under that Act or clearing of a kind prescribed under s 51C or set out in Sch 6.

59 In Sch 6, the exemptions for clearing carried out for the purposes of other activities performed under statute are, apart from two instances, quite specific. Those two instances are Item 2(d) and Item 1. In Item 2(d) there is a general exemption for clearing "that is done ... in the exercise of any power conferred under this Act." As counsel for the defendant observed, it is notable that the wording of that exemption is in marked contrast to Item 1, where the exemption is for clearing "done in order to give effect to a requirement to clear under a written law."

60 It can readily be appreciated that where a person is required by or under a written law to carry out clearing, it would be inappropriate to require them to apply under the EP Act for a permit - to be issued or refused subject to the requirements of Div 2 - to do that which by law they are specifically required to do in any event. A number of examples were given, including s 33 of the Bush Fires Act under which the owner or occupier of land may be required by a local government to clear firebreaks; s 54(1) of the Energy Operators (Powers) Act 1979 (WA) which requires an occupier of land to remove any vegetation that is interfering, or is likely to interfere, with any energy supply system; and s 47 of the Emergency Management Act 2005 (WA) under which an owner or occupier of land may be required by a local government to take such action as it may specify in relation to vegetation which may create a hazard in a cyclone.

61 On the plaintiff's construction, on the other hand, whenever a function or duty under a written law required - in the sense of, needed for its practical fulfilment - clearing of native vegetation, the clearing would fall within Item 1. It would follow that whenever any government department or agency, or any other body, needed to clear native vegetation in order to carry out functions required of it under a written law it would be free to do so without regard to s 51C and the environmental safeguards intended to be achieved by the permit provisions of Div 2. In the light of the extent of the functions of various governmental bodies and agencies under written laws, it is not difficult to see that that would make very substantial inroads into the scheme of environmental protection that the EP Act, and in particular the protection of native vegetation that Div 2, is designed to achieve.

62 Moreover, as submitted by counsel for the defendant, such a construction would render a number of the specific exemptions in Sch 6 redundant. It is sufficient in that connection to refer to Item 11, which exempts clearing done under s 34(a), (c) and (h) of the Fire Brigades Act. As I have mentioned, those provisions, in effect, empower the Director or person in charge of the Fire and Emergency Services Authority, in the case of a fire or hazardous material incident or in order to effect a rescue, to take any measures that seem expedient or necessary for the protection of life and property and for purpose of extinguishing or controlling a fire, confining or ending a hazardous material incident or rendering the site of the incident safe, or carrying out a rescue operation. On the plaintiff's construction of Item 1, the specific exemptions in Item 11 would be unnecessary as the ground would already be covered by Item 1. The other exemptions in Sch 6 that were referred to by counsel for the defendant would likewise be rendered unnecessary on the plaintiff's construction.

63 I do not accept the plaintiff's submission that the effect of construing s 51C in the manner contended for by the defendant would unreasonably restrict the field of operation of Item 1 nor do I accept that it would constitute an impractical restriction on the performance of the plaintiff's statutory functions.

64 It can be accepted for present purposes that the frequency or urgency with which clearing needs to be done poses practical difficulties for the plaintiff in obtaining the necessary permit on each occasion, on an ad hoc basis. But the EP Act specifically provides for purpose permits to be obtained under s 51E to enable clearing to be carried out in different areas and from time to time for a specified purpose for a period of up to five years. A purpose permit does, on the other hand, enable the defendant to specify conditions to be complied with in carrying out the clearing, and the principles and criteria to be applied and the strategies and procedures that are to be followed in relation to the clearing are set out in the permit, thereby enabling an element of environmental control to be exercised over the way in which clearing is carried out. That, it seems to me, is consistent with the objects and purpose of the EP Act, particularly, I might add, given the extent of the clearing of native vegetation carried out annually by the plaintiff.

65 In that connection, I should say that there was evidence from an employee of the defendant that the defendant is encouraging utilities to apply for State-wide purpose permits. There was reference, by way of example, to another large public utility, Main Roads WA, which has applied for and obtained a purpose permit to enable it to carry out clearing in respect of all of its major project works, other than clearing seriously at variance with the clearing principles in Sch 5 of the EP Act.

66 I do not accept the construction of the EP Act contended for by the plaintiff and I do not, therefore, consider that it is entitled to the declaration claimed. Accordingly, I would dismiss the plaintiff's application. In the circumstances, it is unnecessary to consider the alternative argument of the defendant that the declaratory relief sought by the plaintiff is inappropriate.

Corporation Act 1995

Services Licensing Act 1995

Agencies (Powers) Act 1984

Water Supply Sewerage and Drainage Act 1909

Towns Sewerage Act 1948

Areas Water Supply Act 1947

Water and Irrigation Act 1914

Land Management Act 1984

Protection (Clearing of Native Vegetation) Regulations 2004

Operators (Powers) Act 1979

Water Corporation v Chief Executive Officer of The Department of Environment [2006] WASC 256

At a glance

Court

Decision date

Before

Catchwords

Source

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Judgment (93 paragraphs)

Water Corporation v Chief Executive Officer of The Department of Environment [2006] WASC 256 (17 November 2006)

Parties

Legislation Cited (15)

Cases Cited (5)