Bond v Chief Executive, Department of Environment and Heritage Protection

This decision will be of particular interest to practitioners in the environment and planning jurisdiction. In this decision, the Court of Appeal determined the effect of s 521 of the Environmental Protection Act 1994 with respect to a decision to grant an Environmental Protection Order.  Section 521 provides for a 10 day period to make an application for review of the decision to grant an EPO or longer if special circumstances exist.  The issue was whether the Chief Executive was required to determine that special circumstances exist for extending the 10-day period before issuing the EPO. The court held that s 521 did not require that determination to be made prior to an EPO being issued.

Morrison and Philippides JJA and Mullins J

22 August 2017

The applicant, Mr Bond, was the CEO and Managing Director of Linc Energy Ltd. [1].  The respondent was the Chief Executive, Department of Environment and Heritage Protection. [2].  Linc Energy carried an underground coal gasification plant on land at Chinchilla which caused the land to suffer environmental harm and contamination. [1]. The Chief Executive had issued an Environmental Protection Order (“EPO”) to Mr Bond to ensure the performance of Linc Energy’s obligations to rehabilitate or restore the land. [2]. Mr Bond applied to the Planning and Environment Court to have the EPO declared unlawful. [3]. That application was dismissed. [4]. Mr Bond subsequently sought leave to appeal to the Queensland Court of Appeal. [4].

The proposed grounds of appeal, which alleged errors of law on the part of the primary judge, concerned the construction of s 521 of the Environmental Protection Act 1994. Section 521 provides that a “dissatisfied person may apply for a review of an original decision” (s 521(1)). The application, however, must be made within “10 business days after the day on which the person receives notice of the original decision…” (s 521(2)(a)(i)), or “the longer period the authority in special circumstances allows” (s 521(2)(a)(ii)). [15].

The central contention of Mr Bond’s argument was that “on the proper construction of s 521 the Chief Executive had to determine whether there were special circumstances prior to the issue of the EPO, and, if so, to state a period longer than 10 business days in the EPO”. [14]. Mr Bond argued that the Chief Executive’s failure to make such an assessment amounted to a denial of procedural fairness, thus making the EPO invalid.

Morrison JA, with whom Philippides JA and Mullins J agreed, granted leave to appeal, but ultimately dismissed the appeal. His Honour said that "if it were intended that the determination of special circumstances could only be made before the EPO issue, one would expect to see clear words to that effect … [t]here are no such words”. [23]. According to his Honour, “the decision as to whether special circumstances exist, and therefore warrant a longer period, is not confined to being made before the EPO issues”. [42].

His Honour concluded that the text of s 521, in context, (or the matters raised by the applicant (set out at [30]) did not compel the construction that the only time the administering authority can determine that there are special circumstances is before the original decision is made. [59].  His Honour held that the proper construction of s 521 is as follows:

“(a)  prior to an EPO issuing, the administering authority is not obliged to enquire of the recipient if there are ‘special circumstances’ for the purposes of s 521(2)(a), but it may do so; and

(b)   the determination that there are “special circumstances” for the purposes of s 521(2)(a) does not have to be made prior to issuing an EPO, but it can be, and may also be made in the period of 10 business days referred to in s 521(2)(a)(i); and

(c)   once a longer period has been allowed under s 521(2)(a)(ii), further periods may be allowed if there are “special circumstances” which warrant that.” [60].

The appeal was dismissed. [71].

J English