Phosphate Co-operative Company of Australia Ltd v Environment Protection Authority [1977] HCA 65; (1977) 138 CLR 134 (9 December 1977)

HIGH COURT OF AUSTRALIA

PHOSPHATE CO-OPERATIVE CO. OF AUSTRALIA LTD. v. ENVIRONMENT PROTECTION AUTHORITY [1977] HCA 65; (1977) 138 CLR 134

Environment Protection (Vict.)

High Court of Australia

Stephen(1), Mason(2) and Aickin(3) JJ.

CATCHWORDS

Environment Protection (Vict.) - Environment Protection Appeals Board - Powers - Application for licence to discharge waste - Conditions - Appeal - Whether Board can take account of economic consequences of conditions imposed or utility to public of appellant's activities - Environment Protection Act 1970 (Vict.) Pt IV.

HEARING

Melbourne, 1977, May 10, 11.

Sydney, 1977, December 9. 9:12:1977

APPEAL from the Supreme Court of Victoria.

DECISION

1977, December 9.

The following written judgments were delivered:-

STEPHEN J. The Phosphate Co-operative Co. of Australia Ltd. ("the company") at North Shore on Corio Bay where superphosphate is produced and this involves the application of sulphuric acid to phosphate rock. The company manufactures its own sulphuric acid by means of a chemical reaction in a contact plant. There are two contact plants at the company's works and their operation, especially when first starting up the plant, involves the discharge to atmosphere of acid gases, described as sulphur trioxide. The company accordingly applied to the Environment Protection Authority ("the Authority") pursuant to the Environment Protection Act 1970 (Vict.) for a licence to discharge waste from one of these contact plants. (at p136)

2. The Authority granted the company such a licence but imposed a number of conditions, one of which prohibited the commencement or continuation of start-up operations at the contact plant if offshore winds were blowing. The company objected to this condition as excessively onerous since it would severely restrict the occasions upon which it might lawfully start up the contact plant. (at p136)

3. The company accordingly availed itself of the right accorded by the Environment Protection Act to appeal against conditions imposed upon the grant of a licence and instituted an appeal to the appropriate appellate body constituted under the Act, the Environment Protection Appeals Board ("the Board"). The Board heard the appeal and somewhat varied the terms of the condition but not so as to satisfy the company, which then, by recourse to the procedure prescribed by s. 36 (3) of the Act, appealed to the Supreme Court. That section grants a right of appeal to the Supreme Court on any question of law. This appeal takes the form of an order nisi to review and on its return it came before Crockett J. in the Supreme Court. It involved a large number of grounds which his Honour dealt with in a reserved judgment. His Honour in the outcome discharged the order nisi. The company was subsequently granted special leave to appeal to this Court, its appeal being limited to two of the questions which had been canvassed before Crockett J. It is with these two questions that we are now concerned. (at p136)

4. The first question is set out in the order granting special leave to appeal in the following terms:

"1. Whether in exercising its jurisdiction under the

Environment Protection Act 1970 to direct that a licence issued

under that Act shall or shall not contain a specified

condition or be subject to a specified variation of a condition

imposed by the Environment Protection Authority on a

licence, the Environment Protection Appeal Board can or

ought to take into account as a matter of the true

construction of the said Act, the economic consequences to the

community of the imposition of the condition, the utility to

the public of the operations affected by the licence or the

economic cost to the holder of the licence of the imposition of

the condition." (at p136)

5. For this Court the answer to this question lies exclusively in an interpretation of the Environment Protection Act. For those concerned with the formulation of environmental policies there must always exist a problem in the reconciliation of conflicting aims: the individual should ideally be able both to enjoy an environment of acceptable quality and at the same time to experience as high a degree of economic well-being as possible. But the attainment of the one may prejudice the achievement of the other, the prohibition of pollutant industrial activity may lead to reduced standards of living, perhaps to widespread unemployment and economic depression. However these are the problems of legislators and, ultimately, of the electorate to which they are answerable. The problem for the Court is only to discern, from the terms of this Act, whether Victorian legislators have in fact to any extent assigned to the bodies constituted under the Act the task of balancing against possible environmental gain possible consequential detriments of an economic nature; or whether, on the contrary, they have been content to have these bodies concentrate exclusively upon the former regardless of any economic consequences, whether directly affecting the company or, more remotely, the consumers of its product the suppliers of its raw materials and the economy generally. (at p137)

6. My examination of the legislation has led me to conclude that neither the Authority nor, on appeal, the Board may, in its deliberations upon licences or licence conditions, have regard to any one of the three matters raised in the present question, matters which, for convenience, I shall collectively refer to as "economic consequences". (at p137)

7. A number of considerations have led me to this conclusion: the absence from the Act of anything in the nature of a positive direction that economic consequences or general considerations of the public interest are to be taken into account: the presence of a number of indications pointing in a contrary direction, and, no less importantly, the essential nature of the task which the Act calls upon the Authority to perform by means of its licensing powers. That task is not to minimize pollution to the extent consistent with maintenance of the existing or some other particular level of industrial and commercial activity. It is, rather, to control the discharge, emission and depositing of wastes into the environment to the extent necessary to prevent the occurrence of what the Act defines as pollution. That being the work of the Authority, to be achieved by the exercise of its licensing powers, its concern is with regulation and control of the extent to which wastes are discharged which may adversely affect the environment and not with the economic consequences of preventing or restricting their discharge. (at p137)

8. Part I of the Act is introductory; Pt II, to which further reference will later be made, is concerned with the entities which the Act creates, collectively styled "environment protection bodies". It is in Pt III that substantive measures first appear. Part III is entitled "Environment Protection" and consists of two groups of sections, ss. 16 to 19, concerned with the "Declaration of Policy", and ss. 20 to 31, concerned with the "Control of Wastes". The first of these two groups provides, in ss. 16, 17 and 19, for the making of orders on the Authority's recommendation declaring State environment protection policies, for the securing of their observance and for prior notification and ultimate adoption of such policies. Section 18 describes these orders as being to "establish the basis for maintaining environmental quality sufficient to protect existing and anticipated beneficial uses". This group of sections thus gives effect to one of the duties and functions of the Authority, that of recommending State environment protection policy for the protection of the environment with respect to uses and values to be protected, quality to be maintained and the like (s. 13 (1) (c)). It is conceivable, despite their title, that such policies might require that, in particular localities, the needs of industry should be catered for. They might also be so framed as to involve the making of discretionary judgments as to those needs and as to their reconciliation with measures designed exclusively for the enhancement of the quality of the local environment. If so, this might affect the considerations relevant to the granting of licences - see s. 20 (8), referred to below. What is said in this judgment is to be understood subject to this possibility. However this possible qualification is inapplicable to the present case; no environment protection policy has been formulated which applies to the Company's operations; indeed as yet very little would appear to have been done by way of the issue of such policies. (at p138)

9. The second group of sections is, as its heading suggests, concerned with "Control of Wastes"; new discharges of wastes into the environment without licences are prohibited, as is the continuance, after a period of grace, of existing discharges (s. 20 (1) and (2) ). There follow provisions for the making of licence applications, for the obtaining and consideration of reports on applications submitted and for the granting or refusal of licences (s. 20 (3) -(7)). (at p138)

10. The information to be supplied by an applicant for a licence, so far as specifically described in this section, is confined to "plans, specifications, descriptions of waste constituents and characteristics" (sub-s. (3)) and, although other information may be sought, it appears to be with the nature of the waste discharge and not at all with the general industrial activities in which the applicant is engaged that it is contemplated that the licence-granting authority will be concerned. Notable among these subsections is (5) (b) which provides that no licence shall be granted if the Commission of Public Health objects to the grant of a licence because in its opinion to grant one would endanger public health; indeed in such circumstances no further consideration may be given to the application (sub-s. (6)). (at p139)

11. Sub-section (8) of s. 20 requires the licence-granting authority to have regard to the effect of the wastes discharge for which a licence is sought "in relation to State environment protection policy"; this it is to do "so that the licence and any conditions to which it is subject are consistent with such policy". This positive provision is followed by its negative corollary; sub-s. (9) provides for refusal of a licence where it is considered "that the proposed discharge... would by way of location, volume, or constituency be contrary to State environment protection policy or not consistent therewith" or "would create a condition of pollution". Again, while eloquent on the aspect of environmental protection, these important provisions of the Act, providing guidance to licence-granting authorities in their exercise of that function, are entirely silent concerning the industrial activities whose future may be dependent upon the continued emission of the wastes in question. There is nothing to suggest that any process of weighing one consideration against another is contemplated. (at p139)

12. Sub-section (10) resembles in its stringency sub-s. (5) (b); it requires a person whose application for a licence is refused to cease the discharge of wastes. The remainder of s. 20, and indeed the remaining sections of Pt III of the Act, call for no comment, they appear to cast no light upon the present question. However before leaving this Part it is appropriate to hark back to s. 20 (9) and its reference to the creation of a condition of pollution. This, it will be recalled, is a ground for refusal to grant a licence. The definition of "pollution" in s. 4 of the Act is such as to concern itself exclusively with the effect of the discharge of wastes upon the environment and not at all with the nature of the activities productive of those wastes. Thus, when the Authority exercises its power to refuse a licence on this ground, its sole task appears to be to determine whether the effect of the discharge will amount to the creation of a condition of pollution, as defined. (at p139)

13. I referred earlier to Pt II of the Act. It contains some significant provisions. By ss. 6 and 8 the constitution of the Authority and of the Board is prescribed; the former is to be comprised of three members, two expert and qualified in environmental control and the remaining member possessing administrative skill and experience; the Board is to consist of not more than six members, one of whom is to be a lawyer and the other persons experienced in environmental control or management. Thus neither body will contail members chosen for their expertise in the field of economics or as financial or industrial experts; instead heavy emphasis is placed upon environmental control skills, suggesting that it is in such field that their work will lie. (at p140)

14. I have already made some reference to one portion of s. 13 (1) of Pt II. That sub-section states what are to be the powers, duties and functions of the Authority; apart from its obvious duty to administer the Act (par. (a)), it is assigned a host of other tasks, described in fifteen further paragraphs. Many of these throw no light upon the present inquiry, save that they appear to be exclusively concerned with aspects of environmental control and management. (at p140)

15. Two paragraphs of s. 13 (1) do, however, merit further reference. Paragraph (b) reads as follows:

"(b) To be responsible for and to co-ordinate all activities

relating to the discharge of wastes into the environment and

for preventing or controlling pollution and protecting and

improving the quality of the environment."

In speaking of the "controlling" of pollution this paragraph supplies a reference, rare in this legislation, to what might be understood as recognition of the possibility that instead of the outright prohibition of any discharge which might occasion pollution there might instead be involved some balancing of environmental gains against economic detriments. However this isolated instance, if, indeed, it amounts to that, occurring in a paragraph concerned with quite general matters, does not suffice, in the light of the rest of the Act, to make out the proposition for which the appellant contends. A later more specific paragraph, par. (d), deals rather differently with the grant of licences. It reads:

"(d) By the issue of licences to control the volume, types,

constituents and effects of waste discharges, emissions,

deposits, or other sources of pollutants and of substances

which are of danger or a potential danger to the quality of the

environment or any segment of the environment."

It seems to proceed upon the footing that licences will be used not to control pollution, in the sense of accepting its existence and regulating its degree, but rather so as to control the sources of pollution so that the quality of the environment will not be affected by pollution. In this it accords with the terms of s. 20 (9) which makes the creation of a condition of pollution a ground for refusal of a licence. (at p141)

16. The functions of the Board are defined by s. 13 (4): they are only to hear and determine all appeals "with respect to licensing the discharges, emissions or deposits of wastes". It was common ground on this appeal that the matters which the Board might take into account upon an appeal could not extend beyond those which the Authority might consider when determining an application for a licence. (at p141)

17. Part IV of the Act deals at length and in an exceedingly confused fashion with the subject of appeals to the Board. The Board is to act informally and in accordance with the substantial merits of the case. Apart from confirming the propriety of the appellant's concession that the Board's range of relevant consideration should be no wider than that of the Authority, Pt IV throws no light upon the present problem. (at p141)

18. Parts V to IX of the Act reflect a rather different approach to problems of the environment than that adopted in earlier parts; they are concerned respectively with discharges of wastes into waters, the atmosphere, and the soil and with control of noise and of litter. The first three of these parts take as their criterion pollution and are directed to its prohibition and to requiring that all wastes discharge shall accord with State environment protection policies. Their emphasis upon the prevention of acts of pollution is entirely consistent with the general approach which I have already suggested that the legislation adopts towards environmental controls. Parts VIII and IX call for no comment, nor, I think, does the concluding part, entitled "General". (at p141)

19. This survey of the Act will have disclosed my reasons for regarding it as exclusively concerned, as its title suggests, with an unqualified protection of the environment, unqualified in the sense that no consideration is to be given to other desirable goals if they are nevertheless inimical to the environment. I conclude from a reading of the Act that it and the bodies which it creates are intended to be single-minded in approach, being concerned, regardless of consequences, with the protection of the environment. The terms of s. 3 (2), which provide that the general provisions of the Act and of regulations or orders made under it shall prevail over any inconsistent laws of the State, are in harmony with the rigorous spirit animating the rest of the Act. That the Act's provisions are often inept in drafting and contain many ambiguities and a considerable degree of incoherence of language, a matter remarked upon by Gillard J. in the recent case of Protean (Holdings) Ltd. v. Environment Protection Authority [1977] VicRp 5; (1977) VR 51 , does not detract from the firm impression which its terms convey as to the functions of the Authority and the Board. The courts have certainly no mandate to remould those functions so as to afford to the Act an operation different from that intended by the legislature. (at p142)

20. For the appellant reliance was placed upon the requirement of s. 20 (4) that the licence-granting authority should, on receiving an application, refer it to those who in its opinion might "be affected by or should consider the application". This was said to indicate that a wide variety of views should be sought including those of persons or bodies who would be adversely affected by a refusal of the application. I do not read the sub-section in this way. Although the imperfections of expression apparent throughout the Act do not encourage nice analysis, it is significant that those to whom the application is to be referred are expected to furnish, in response, a "report", not merely objections (s. 20 (5) ). No doubt the Authority would, under s. 20 (4) , be entitled to seek reports from a wide range of bodies and persons but in doing so it is not, I think, concerned to discover the attitudes of individuals likely to be affected in one way or another by the grant or refusal of a licence; it is, on the contrary, merely to inform itself of matters going to the question whether or not a licence should be granted. But, whatever its precise effect, this sub-section does nothing to extend the range of matters to which the Authority should have regard; it lends no support to the view that it should seek reports on other than environmental aspects; the terms of the sub-section cannot serve to extend what otherwise appears to be the narrow scope of matters for consideration by the Authority and, on appeal, by the Board. (at p142)

21. Again, the appellant relied upon the definition of "beneficial use" in s. 4 of the Act and upon the reference, in that definition, to the concepts of public benefit and welfare. However the defining of "beneficial use" is undertaken, I think, principally so that the phrase may, together with a number of other defined terms, be employed in the defintiion of "pollution". The result is greatly to complicate and obscure the meaning of pollution, but its use for this purpose may be seen to deprive the phrase "public benefit" of the particular use to which the appellant wishes to put it. It introduces no notion that general public benefit is to be taken into account; instead it does no more than require that to constitute "pollution" there must be an alteration of the environment by discharge of wastes which adversely affects a use of the environment which is in itself conducive to (inter alia) public benefit and welfare. (at p143)

22. In these circumstances, given the narrow and single-minded mandate which the Act confers, the Board was, in the present case, correct in refusing to take into consideration evidence such as the appellant wished to place before it. The Board's chairman said at the time "Our only concern is the protection of the environment" and indicated that what he described as "economics" were of no concern to the Board. He was, in the light of this legislation, right in adopting this view, although some might think, as was urged on the appellant's behalf, that such a course remorselessly pursued must lead to curious and perhaps unforeseen consequences of considerable detriment to the community as a whole. (at p143)

23. There remains the second question in respect of which special leave to appeal was granted:

"2. Whether in an appeal against the imposition of

condition 22 of the licence the burden is on the Environment

Protection Authority to show that the condition should

remain a term of the grant of a licence." (at p143)

24. The argument on this appeal made it clear that the decision of the Board in no way turned upon any question either of the burden of proof or of the nature of the Board's appellate function. Crockett J. did examine in some detail what he described as the question of the party upon whom, in an appeal to the Board, lay the ultimate burden of proof. He concluded that the Board's views on this question, as expressed in the course of the appeal to it, were in error but that that error did not require any review of its decision because, he said, it was clear "that the determination made by it was in no way dependent upon which party carried the onus of proof. Nor can there by any doubt, regardless of on whom lay that onus, that the presentation of evidence would have taken no different course from that in fact followed". (at p143)

25. In these circumstances I regard it as unnecessary and inappropriate that this Court should consider this second question. Neither the decision of the Board nor that of Crockett J. turned upon it and but for certain observations by the chairman concerning the Board's general practice it seems that the matter would never have been seized upon as any ground of appeal. Since the outcome of the appeal to the Board turned neither upon any question of onus of proof or upon the precise approach which the Board should adopt to appeals coming before it the true nature of the question said to be involved in this ground of appeal has never clearly emerged. In the little time which was devoted to it on this present appeal it became apparent that there was uncertainty whether what was really in issue was the character of the Board's appellate function or the particular application of one or more of those concepts which lie concealed within the rubric, "burden of proof", or, again, some procedural question as to the right to begin. This uncertainty illustrates the undesirability of deciding moot points the precise nature and dimensions of which remain unclear for want of fact situations to bring them into sharp focus. (at p144)

26. I would accordingly express no view upon this second purported ground of appeal in respect of which special leave to appeal was granted. (at p144)

27. I would dismiss this appeal. (at p144)

MASON J. I would dismiss this appeal for the reasons given by Stephen J. (at p144)

AICKIN J. This is an appeal by special leave from the decision of Crockett J. in the Supreme Court of Victoria in which he had to consider the Environment Protection Act 1970. That Act gives various powers to the Environment Protection Authority ("the Authority") and from its decisions an appeal may be instituted to the Environment Protection Appeals Board ("the Board"). From decisions of the Board an appeal is given on questions of law to the Supreme Court by s. 36 (3) of the Act. Special leave to appeal was granted in respect of two questions but in the end only the first was argued in this Court. The question was as follows:

"Whether in exercising its jurisdiction under the

Environment Protection Act 1970 to direct that a licence issued under

that Act shall or shall not contain a specified condition or be

subject to a specified variation of a condition imposed by the

Environment Protection Authority on a licence, the

Environment Protection Appeal Board can or ought to take into

account as a matter of the true construction of the said Act

the economic consequences to the community of the

imposition of the condition, the utility to the public of the operations

affected by the licence or the economic cost to the holder of

the licence of the imposition of the condition." (at p144)

2. The question can be answered only upon a careful examination of a substantial number of provisions in this very complex Act. Its construction is rendered more difficult by reason of a number of very elaborate and interlocking definitions. It is not necessary to set out these definitions here but it is to be borne in mind that many of the relevant sections cannot be understood or their impact made clear without reading them in the light of the definitions. (at p145)

3. The Act provides for three environment protection bodies, namely the Authority, the Environment Protection Council and the Board. We are here concerned only with the Authority and the Board. In s. 13 the powers, duties and functions of the Authority are set out. Paragraph (a) provides that it is "to administer this Act and any regulations and Orders made thereunder". Paragraph (b) provides that it is "to be responsible for and to co-ordinate all activities relating to the discharge of wastes into the environment and for preventing or controlling pollution and protecting and improving the quality of the environment". By par. (c) it is to recommend to the Governor in Council State environment protection policy and classifications for the protection of any portion or portions of the environment with respect to the uses and values to be protected, the quality to be maintained and the extent to which the discharge of wastes may be permitted without detriment to the quality of the environment and other factors relating to the protection of the environment. Paragraph (d) provides that it is "by the issue of licences to control the volume, types, constituents and effects of waste discharges, emissions, deposits, or other sources of pollutants and of substances which are of danger or a potential danger to the quality of the environment or any segment of the environment". By par. (g) it is to "specify standards and criteria for the protection of beneficial uses and the maintenance of the quality of the environment having regard to the ability of the environment to absorb waste without detriment to its quality and other characteristics". By par. (m) it is to establish and maintain liaison and co-operation with other States and the Commonwealth with respect to environment protection, pollution control, and waste management. By other paragraphs it is given miscellaneous powers with respect to planning and co-ordination in environment management, waste management and pollution control. By s. 16 the Governor in Council may on the recommendation of the Authority declare "the environment protection policy to be observed with respect to the environment generally or in any portion or portions of Victoria or with respect to any element or elements or segment or segments of the environment." We were informed that no relevant environment protection policy had been declared which affected the position of the appellant or the area in which it conducted its operations and indeed it appears that no general policy has been declared and that there have been very few specific polices declared in respect of portions of Victoria, or of any elements or segments of the environment. This presents a substantial problem in the operation of the Act because many of its provisions are related directly to observance of "State environment protection policy" as declared by the Governor in Council. (at p146)

4. By s. 20 (i) it is provided that after the commencement of the section no person shall "begin discharging, emitting, or depositing wastes into the environment without being licensed under this Act." And by sub-s. (2) "any person who at the commencement of this section is discharging, emitting, or depositing wastes into the environment, whether licensed or permitted to do so under any other Act or not, may continue subject to compliance with policies, classifications and standards determined under this Act to discharge, emit, or deposit wastes into the environment but within three months after the said commencement shall make application for a licence under this Act." Under other sub-sections the Authority may grant the licence subject to conditions, limitations and restrictions and may refuse to grant the licence. Under sub-s. (8) the Authority is to have regard to the effect of the discharge of the wastes in relation to State environment protection policy so that the licence and any conditions to which it is subject are consistent with such policy. Under sub-s. (9) the Authority may refuse to grant a licence "where it considers that the proposed discharge, emission, or deposit would by way of location, volume, or constituency be contrary to State environment protection policy or not consistent therewith or any classification which is applicable in the circumstances or would create a condition of pollution". (at p146)

5. These provisions cannot be understood without reference to the definitions of "beneficial use", "environment", "land", "pollutant", "pollution" and "waste". (at p146)

6. The definition of "waste" is extremely wide. It includes any matter (liquid, solid, gaseous, or radio-active) discharged, emitted, or deposited in the environment (i.e. "the physical factors of the surroundings of human beings including the land, water, atmosphere, climate, sound, odours, tastes, the biological factors of animals and plants and the social factor of aesthetics"), though one may wonder how "matter" may be discharged into some of those items. The definition requires however that to amount to "waste" matter must be discharged "in such volume, constituency or manner as to cause an alteration of the environment." Any alteration, whether beneficial or detrimental is sufficient to satisfy the definition. The definition is so wide that to smoke, or perhaps even to breathe, would appear to be to emit matter into the environment so as to cause an alteration in the immediately surrounding portion of the environment. To water one's garden or to drive a car would equally be to discharge waste as defined and would require a licence from the Authority. (at p147)

7. These examples may seem at first sight to be fanciful and exaggerated but a reading of the definition appears plainly to demonstrate that the conclusion is inescapable. (at p147)

8. The definition of "pollutant" and "pollution" is somewhat narrower because pollution involves not merely "an alteration of the environment" but one which has some adverse effect or which causes a condition which is hazardous or potentially hazardous to public health, safety, or welfare, or to animals, birds, wildlife, fish or aquatic life, or to plants. To pursue the domestic examples it is clear enough that to spread weed killer on a garden bed or to spray a fruit tree in a suburban garden constitutes pollution. Again all air from a domestic heating system, or from a domestic airconditioning system appears to be a "pollutant" because it imparts temperature change to a segment or element of the environment as defined. (at p147)

9. The Act is thus not concerned merely with the discharge of industrial wastes in the ordinary sense of the term, though it plainly includes them in its ambit, but on its clear words calls for a system of licensing affecting many activities of daily life, whether it is in domestic, industrial or agricultural fields or whatever other field one cares to name. (at p147)

10. It is in the light of this wide ambit of the terms "waste", "pollution" and "pollutant" that one must approach the nature and extent of the powers given. It appears to me that the power and function in s. 13(1)(b) of "preventing or controlling pollution and protecting and improving the quality of the environment" is not one which requires the prevention of all pollution but one which includes the control of pollution so as to deal with such aspects as appear to be necessary and to balance the elimination of pollution against other requirements of the daily life of the community and the means by which its food, shelter, light, heat and power are provided. This appears to me to follow from the use of the word "control" either alone or as an alternative to "prevent". It also follows from the provisions of s. 20 and in particular from sub-s. (9) which provides that the Authority "may refuse to grant a licence" where it considers that the proposed discharge, emission or deposit of wastes "would create a condition of pollution", an expression which must mean a situation in which the discharge of waste causes some direct or indirect alteration in the environment of the kind specified in the definition. The very words themselves import a discretion in the Authority to grant or to refuse a licence in the conditions specified. This view follows also from the extreme width of the definition of "pollution", which includes any direct or indirect alteration in any of the properties of any part of the environment by discharging wastes so as "to cause a condition which is hazardous or potentially hazardous to public health, safety, or welfare, or to animals, birds, wildlife, fish or aquatic life, or to plants". The complete elimination of everything falling within that area is so unlikely an intention that clear words would be required to convey it. (at p148)

11. The same general conclusion applies in relation to Pt V because s. 38 requires that the discharge of wastes into waters of the State is to be in accordance with declared State environment protection policy specifying acceptable conditions for the discharge or deposit of wastes into waters in the environment and s. 39 creates an offence described by the words "no person shall pollute any waters". The verb "to pollute" is not defined in the Act but no doubt it has a meaning related to the somewhat differing definitions of "pollutant" and "pollution" in s. 4 (1), both of which are either directly or indirectly linked with the definition of waste, which involves the alteration of any part of the environment by discharging, emitting or depositing wastes so as to produce a condition which is either hazardous or potentially hazardous to various forms of life as there specified. (at p148)

12. All these considerations point towards the conclusion that the Authority and the Board are not exclusively concerned with elimination of pollution (as defined) of any and every kind, nor are they committed by the Act to the elimination of discharge of all waste (as defined) irrespective of the consequences. As it seems to me they would be bound to consider at least some other matters of general public interest, including the economic interests of the community, which may outweight the prevention or elimination of some particular example of pollution. At the very least the capacity of the environment to absorb waste without detriment to its quality would require consideration. (at p148)

13. The appeal provisions contained in Pt IV appear to me to show that at least in some respects the Authority and the Board are obliged to consider economic matters. Section 32 provides for two kinds of appeals, namely appeals to the Board from decisions of the Authority and what are called "third party appeals". As to the latter sub-s (5) provides that a "person who feels aggrieved" by the grant or amendment of a licence or the removal of a suspension of a licence may appeal to the Authority against the grant etc. on one or more of three grounds, which are as follows:

"(a) that the discharge, emission, or deposit of wastes under

the provisions of the licence will unreasonably and adversely

affect the interests, whether wholly or partly, of that

person;

(b) that the discharge, emission, or deposit of wastes under

the provisions of the licence will be inconsistent with or will

result in conditions inconsistent with State environment

protection policy established for the area or, in the absence of

any such policy, would result in a condition of pollution;

(c) that the emission of noise above tolerable levels under

the provisions of a licence will unreasonably and adversely

affect the interests, whether wholly or partly, of that person

or would be inconsistent with or will result in conditions

inconsistent with State environment protection policy

established for the area." (at p149)

14. The expression "unreasonably and adversely affect the interests" of the person aggrieved is not defined nor its ordinary meaning displaced. It would include the economic interests of the person aggrieved. (at p149)

15. There remains for consideration the effect of Pts V, VI and VII which deal respectively with "clean Water", "Clean Air", and "Control of Solid Wastes and Soil Pollution" and which do not fit very precisely into the scheme of Pts III and IV. Each provides in its opening section (ss. 38, 40 and 44 respectively) that the discharge of wastes into waters, the atmosphere and in or on the soil shall be in accordance with declared State environment protection policy specifying acceptable standards and conditions therefore and shall comply with any standards applicable under the Act. Those provisions have no operation unless and until there are such declared policies. (at p149)

16. Each part, however, contains a section creating certain offences. Thus s.39 in Pt V provides in sub-s. (1) "no person shall pollute any waters or cause or permit any waters to be polluted so that the physical, chemical, or biological condition of the waters is so changed as to make or be reasonably expected to make those waters or any part of those waters unclean, noxious, poisonous or impure, detrimental to the health, welfare, safety, or property of human beings, poisonous or harmful to animals, birds, wildlife, fish or other aquatic life, or to plants or detrimental to any beneficial use made of those waters." It will be observed that this introduces additional factors to those involved in the definition of "pollution". Sub-section (2) however provides that "without in any way limiting the generality of sub-s. (1) a person contravenes that subsection if ... (b) he places any waste, whether solid, liquid, or gaseous, in a position where it falls, descends, drains, evaporates, is washed, is blown, or percolates, or is likely to fall, descend, drain, evaporate, be washed, be blown, or percolate into any waters or onto the bed of any river, stream, or other waterway, when dry, or knowingly, or through his negligence, whether directly or indirectly, causes or permits any such matter to be placed in such a position; (c) he places waste on the bed, when dry, of any river, stream, or other waterway, or knowingly or through his negligence causes or permits any waste to be placed on such a bed; ...". It will be observed that this sub-section deals with "waste" and not with pollution and there is no reason to suppose that the term "waste" is used otherwise than in its defined sense of "matter discharged, emitted, or deposited in the environment" so as to cause any alteration of the environment. There is a penalty prescribed for breaches of s. 39. Presumably sub-s. (2) must be read as subject to the grant of a licence by the Authority, though it does not say so. Notwithstanding that, it makes the mere deposit of waste an offence against sub-s. (1) which deals with pollution. (at p150)

17. Section 41 in Pt VI follows a somewhat similar course in that sub-s. (1) deals with pollution so as to produce a change in the atmosphere in the same terms as s. 39 (1). Sub-section (2) however contains no such general provision as pars. (b) and (c) of sub-s. (2) of s. 39. Paragraph (b) is concerned with the discharge of odours which are obnoxious or unduly offensive to human beings, par. (c) prohibits the burning of rubbish otherwise than as prescribed and par. (d) prohibits the use of an internal combustion engine not equipped with a device required by regulations. (at p150)

18. Section 45 in Pt VII contains in sub-s. (1) a similar provision to sub-s. (1) of s. 39 and 41 prohibiting the pollution of the soil or surface of any land in the same manner as is set out in the other sub-sections. Sub-section (2) is more limited in its terms than the corresponding provisions of the other sections in that although par. (a) is in the same form, par. (b) is as follows:

"he establishes on any land a refuse dump, garbage tip, soil

and rock disposal site, sludge deposit site, waste-injection

well or otherwise uses land for the disposal of or repository

for solid or liquid wastes so as to be obnoxious or unduly

offensive to the senses of human beings or interfere with

underground water or be detrimental to any beneficial use of

the soil or the surface of the land."

The doing of those things is to be a contravention of sub-s. (1) dealing with pollution. (at p150)

19. No doubt both ss. 41 and 45 are also to be read as subject to the licence provisions of Pt III. (at p151)

20. The principal problem which arises from the provisions in Pts V, VI and VII is the apparent complete prohibition, licence or no licence, against pollution, as there referred to, of the atmosphere, notwithstanding that in relation neither to water nor to soil is there a corresponding provision. As I have indicated above I think that those parts must be read as subject to the grant of licences under the provisions of Pt III and as not making it an offence to do that which is permitted under that licence. In these circumstances it does not seem to me that they can materially affect the construction of the provisions of Pt III or require that the Authority should disregard economic matters if in accordance with the provisions of Pt III itself they are material to the grant of a licence or the conditions to be imposed upon a licence. (at p151)

21. For those reasons I am of opinion that in considering applications for licences the Authority not only may but is required to take into account economic matters relating both to the position of the applicant and to the position of interested persons or groups of persons and the community at large in so far as they may be affected by the refusal to grant or the grant of a licence or by conditions proposed to be attached to such licence. (at p151)

22. I am therefore of opinion that the appeal should be allowed. (at p151)

ORDER

Appeal dismissed with costs.

Authorities Cited0