(Everson DCJ – 30 August 2016) 

Application – Administrative Law – decision – natural justice – procedural fairness – review of decision to issue an Environmental Protection Order – whether the Environmental Protection Order was unlawful

Facts:  This was an application in a pending proceeding seeking the determination of a preliminary point in an appeal; the respondents decision, made pursuant to s 521(10) of the Environmental Protection Act 1994 (EPA), to confirm the decision to issue an Environment Protection Order (EPO) to the appellant.

  1. The EPO was issued to the appellant pursuant to s 363AD of the EPA, as a related person of a high risk company, Linc Energy Limited.
  2. The EPO requires the appellant to take action to rehabilitate or restore land at 357 Kummerows Road, Chinchilla because of environmental harm and/or contaminates on the land where Linc Energy Limited carried out an underground coal gasification plant.
  3. The operation of the EPO is stayed pending the final determination of this application.
  4. Relevantly, s 360 of the EPA states that the EPO must provide the details of the rights to review or appeal the decision.  Inter alia, the EPO gave the appellant 10 business days from the date of notification of the decision to apply for review (opposed to a longer period if they deemed a “special circumstance” existed in accordance with s 521 of the EPA).
  5. The appellant applied for a review and made a submission that the characteristics of the case should constitute “special circumstances”, since there was not a sufficient period of time to enable the appellant to consider the contents of the EPO, take advice from their consultants and formulate grounds in support of this application for internal review.
  6. In response (by letter dated 22 June 2016) the respondent provided the appellant with the requested documents and granted a longer period of time for the appellant to complete the application for internal review (20 business days from the date of the letter).
  7. The appellant sought an order that the appeal be allowed based on the following assertions:
    (a) That the EPO was unlawful because it did not comply with s 360 of the EPA. The appellant alleged that the EPO was unlawful because the respondent ‘wrongly’ gave the appellant 10 business day to lodge a review, since the respondent ‘admitted’ (by letter dated 22 June 2016) that there were “special circumstances” that warranted a longer period of time. Therefore the appellant alleged that s 360(1)(d) of the EPA was not complied with making the EPO invalid.
    (b) The appellant was denied procedural fairness. The appellant alleged that the EPA did not authorise the changing or extending of an internal review period that has already commenced.  They submitted that the extension was ultra vires or otherwise unlawful under the EPA.  Therefore if the provisions of the EPA were not complied with the appellant would lose his right to appeal the decision to the Planning and Environment Court in accordance with s 521(10) of the EPA.

Decision:  The Court held in dismissing the application:

  1. There is no evidence to suggest that the EPO was defective at the time it was issued. This is because the respondent apprehended the “special circumstances” at that stage, as compared to later, when it received the application to review.
  2. The EPO complied with s 360 of the EPA and was not invalid because it failed to acknowledge “special circumstances” in stating the review or appeal details.
  3. While the appellant had a right to apply for a review of the original decision to issue the EPO, there was no right to compel the administering authority to make a review decision as a consequence of s 521(10) of the EPA.  In the absence of a mandatory provision that this occur, the appellant was not denied a procedural fairness as a consequence of the deemed refusal of his application for review of the original decision.
  4. Not every departure from the rules of natural justice warrants a remedy, if such a remedy would be futile.  Nothing in the circumstances suggest that it is likely that the appellant would have received a favourable decision on review in any event.
  5. That it would be futile to grant relief which contemplated the respondent now undertaking a review of the original decision to issue the EPO to the applicant or which contemplated the issuing of a new EPO solely because the applicant was not afforded a review of the original decision.
  6. The Court held that the EPO did comply with s 360(1)(d) of the EPA and the appellant was not denied procedural fairness. 

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