Environment and planning – application seeking costs under s 457 of Sustainable Planning Act 2009 for costs of appeals – reserved costs – incorrectly issued Environmental Protection Orders – appeals invalidly instituted – requirement for internal review of decision to issue Environmental Protection Order – appeal directly to courts from "original decision" only where decision made by CEO personally or local government itself – where Delegated Officer signed on behalf of Chief Executive Officer or local government
Facts: This was an application for costs by the Appellants (the Applicants) in two appeals against the decisions of the Logan City Council (Council) (the Respondent) to issue Environmental Protection Orders (EPOs) to the Appellants. The appeals were both resolved at a mediation chaired by the ADR registrar, however, costs were reserved.
The Applicants were engaged as consultants in the development of a parcel of land at Cornubia. On 17 June 2013, the Council issued an EPO (First EPO) to the Applicants under section 358(e)(iii) of the Environmental Protection Act 1994 (EP Act), alleging that the Applicants had unlawfully deposited prescribed water contaminants in waters and related matters in contravention of section 440ZG of the EP Act. Subsequently, the Council advised that the First EPO would be withdrawn and would be re-issued in order to correct a reference in the "grounds" section. The EPO was reissued on 27 June 2013 (Second EPO), however, was erroneously issued to Yeats & Associates Pty Ltd (Yeats & Associates) instead of the Applicants. A further typographical error was identified in the Second EPO, and as a result, the EPO was again re-issued to Yeats & Associates on 27 June 2013 (Third EPO). The three EPOs were all issued by the Council's Development Compliance Team Leader, Daniel Smith.
The Council argued that the Court lacked jurisdiction because the Applicants were not entitled to commence the appeals, and therefore, were not entitled to their costs. In this regard, the Council pointed to the requirement under section 521 of the EP Act that a person dissatisfied with an "original decision" first apply for an "internal review" of that decision prior to lodging an appeal in the Court. The Council stated that the purpose of the internal review was to identify and resolve technical errors of the type the subject of the appeals. The Applicants conceded that they did not apply for an internal review of the decisions made to issue the EPOs. Accordingly, the Council argued that the Applicants had no right to appeal and could not recover the costs of the invalid appeals.
The Applicants contended that the internal review requirement under section 521 of the EP Act did not apply by virtue of section 521(12)(a), which stipulated that that the section did not apply to a decision made by the Council itself or the Council's CEO personally. In this regard, the Applicants pointed to the fact that Mr Smith's signature on each EPO was accompanied by the words "on behalf of Chris Rose, Chief Executive Officer". The Applicants argued that this demonstrated that the CEO of the Council personally made the decisions to issue those documents and it was merely being communicated by Mr Smith, or alternatively, that Mr Smith made the decision but the CEO subsequently adopted those decisions thereby making them the CEO's personal decisions. On the contrary, the Council argued that the decisions to issue the EPOs were made by Mr Smith exercising his discretion as a Council delegated officer. The Council led evidence, including extracts of the minutes of a Council meeting, which demonstrated that the Council delegated the authority to issue EPOs under the EP Act to Development Compliance Team Leaders. It also submitted that each of the EPOs end by specifically stating that an internal review is the next appropriate step, which would not have been given if an internal review was not possible.
Decision: The Court held, in dismissing the application:
- Council's Development Compliance Team Leader was authorised by the Council to issue the EPOs to the Applicants, and therefore, to have made the original decisions to do so for the purposes of section 521 of the EP Act. It was Mr Smith that made the decisions to issue the EPOs as a delegated officer and not the Council itself or the CEO personally.
- The manner in which a decision is conveyed is not what gives rise to the Court's jurisdiction under section 521(12) of the EP Act, but rather, the original decision must have actually been made by either the local government itself or the CEO personally. This fact could not be discarded in favour of the Applicants' misconstruction of the relevant documents.
- In any event, there was little, if any, evidence within the documentation that the decision came from the CEO personally. The wording "on behalf of Chris Rose, Chief Executive Officer" were merely indicative of the fact that Mr Smith worked under the CEO, and also served to identify official correspondence. The attachment of appeal provisions to the EPOs did not equate to a right of appeal, but instead was likely included to notify the recipients of the possibility of appeal should the internal review fail to satisfy them.
- It could also not be maintained that the Council itself decided to issue the EPOs as there was no evidence of a Council resolution to establish this.
- The Applicants failed to establish that the Council itself or its CEO personally decided to issue the Environmental Protection Orders the subject of the Appeals. Therefore, the Court did not have jurisdiction to hear those Appeals by virtue of sections 521(12) and 531 of the EP Act and the Applicants were not entitled to recover costs for the invalidly instituted appeals. It followed that applications for costs brought by the Applicants ought to be dismissed.
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