This case followed a Victorian Civil and Administrative Tribunal (“VCAT”) decision involving the issuing of a 'works approval' to construct additions to a sewage treatment facility (a Scheduled Premises under the Environment Protection Act 1970 (Vic)) behind coastal sand dunes at 13th Beach, in Victoria. The appeal to the Victorian Supreme Court was unsuccessful, however the case is of note as it relates to sections of the Environment Protection Act 1970 (Vic) that had not been previously considered by a court.

The Environment Protection Authority (EPA) issued a 'works approval' to Barwon Water for the construction of a ‘biosolids thermal drying facility’ to process sewerage sludge close to the existing sewerage treatment plant at Thirteenth Beach, in Black Rock Victoria. Thirteenth Beach Coast Watch (CW) and other groups were unsuccessful in an initial review of the EPA decision before the VCAT.

Thirteenth Beach Coast Watch appealed to the Victorian Supreme Court on the following questions of law:

• The interpretation of “interest” under s 33 B(2)(a) of the Act was too narrow. That is, whether the works “will unreasonably and adversely affect the interests” of CW was interpreted too narrowly.
• VCAT wrongly quoted repealed law and hence failed to appreciate that a mere risk of discharges, emissions or deposits of waste from the premises could establish the grounds relied upon for review.
• VCAT had erred in relation to the standard and onus of proof.

This case considers the the following sections of legislation:

• Section 33B(1) of the Environment Protection Act 1970 (Vic), which says that a person whose “interests are affected” by a decision to grant a works approval under the Environment Protection Act 1970 may apply to the VCAT within 21 days; and
• Section 33B(2)(a) and (b) of the Environment Protection Act 1970 (Vic), which lays of the grounds which an application for review must be based on.

This was the first time that these sections of legislation were considered by Supreme Court of Victoria.

VCAT found that Thirteenth Beach Coast Watch had “sufficient standing” under section 33B(1) of the Environment Protection Act 1970 (Vic) to bring an application for review of a decision to grant this works approval. This finding was based upon the mission statement of Thirteenth Beach Coast Watch. Thirteenth Beach Coast Watch sought to rely on this broad interpretation of “interests” and extend it to the interpretation of “interest” under Enviroment section 33B(2)(a) of the Environment Protection Act 1970 (Vic).

The question was, what interests do you have to show have been “unreasonably and adversley affected” by the “use” of the proposed works in order to gain standing to review a decision under the Environment Protection Act 1970?

The Supreme Court of Victoria decided that section 33B(2)(a) of the Environment Protection Act 1970 (Vic) should be interpreted as referring to the financial, physical or other like personal interests of the particular applicant as an individual or as a corporation.

The Court also applied the decision of the Full Court in Australian Conservation Foundation v Environment Protection Appeal Board.

The Court found that VCAT actually interpreted “interests” under section 33B(2)(a) of the Environment Protection Act 1970 (Vic) too broadly. Cavanough J went further to say it was most likely that Thirteenth Beach Coastal Watch had no interests that were capable of being unreasonably and adversely affected by the proposal. Therefore, section 33B(2)(a) was inapplicable, and the VCAT review should have been confined to section 33B(2)(b).

In its reasons for the initial review, VCAT quoted a repealed, inapplicable version of Environment Protection Act 1970 (Vic) section 33B(2). It was argued that VCAT had actually overlooked the current version of section 33B(2) and as a result their approach to the initial review was “unduly restricted” on the basis that “environmental risk” could serve to establish a ground under section 33B(2)(a) or (b) of the Environment Protection Act 1970 (Vic).

This was not accepted by the court:

I am satisfied that it was merely a drafting slip and that VCAT was aware of the new provisions and took them into account (Cavanough J at 30).

Cavanough J left it open whether mere risk of discharges (as opposed to other, less inherent risks) is sufficient to give rise to the right of review.

Thirteenth Beach Coastal Watch argued that since the case was heard in VCAT there was no onus on them to bring evidence before the tribunal. It was also argued that VCAT required them to make their case on the balance of probabilities.

Cavanough J stated that s 33B(2) of the Environment Protection Act 1970 (Vic) could well be interpreted as placing an onus of proof on applicants for review, but found that he need not decide that question. Besides, **Cavanough J found the EPA actually brought compelling evidence before VCAT, so even if the onus of proof rested on them, they made a strong case (hence also satisfying the burden of proof).

• The full decision is available on Austlii

• The earlier Victorian Civil and Administrative Tribunal decision is also available on Austlii.

• Economic study commissioned as evidence for the initial VCAT appeal