An environmental protection order (EPO) issued pursuant to the chain of responsibility provisions under the Environmental Protection Act 1994 (Qld) (EPA) has survived a challenge in the Planning and Environment Court.
In Bond v Department of Environment and Heritage Protection  QEPC 40 (Bond), Mr Bond sought to challenge the decision of the Department of Environment and Heritage Protection (DEHP) to issue an EPO to him. The EPO was issued pursuant to s 363AD of the EPA on the basis that he was a related person of a high risk company, Linc Energy Limited. The EPO requires Mr Bond to carry out rehabilitation of land that was used as an underground coal gasification plant by Linc Energy Limited and give to DEHP a bank guarantee of $5,500,000 to secure compliance with the EPO.
The EPA provides that an application for internal review must be made within 10 business days unless a longer period is fixed by the DEHP in special circumstances. If an application is made but the DEHP does not review the original decision, the DEHP is deemed to have confirmed its original decision.
Relevantly in Bond, it was argued that the complexity and matters raised in the EPO constituted special circumstances such that the DEHP should have fixed a longer period to apply for internal review. After being put on notice of the existence of the special circumstances, the DEHP purported to extend the nominated time for internal review by 20 business days. However, it was later conceded by the DEHP that there was in fact no power under the EPA to extend the time in this way. The original decision of the DEHP to issue Mr Bond with a EPO was taken to be confirmed.
Mr Bond filed a notice of appeal to the Planning and Environment Court seeking to have the decision to issue an EPO set aside. In a preliminary application, Mr Bond challenged the lawfulness of the EPO on the basis that:
- the EPO did not comply with s 360 of the EPA, which required DEHP to determine whether there were special circumstances when fixing the time period for review; and
- he was denied procedural fairness by the refusal to make a review decision.
Mr Bond was unsuccessful in his application. The Court found that, while DEHP subsequently acknowledged that special circumstances existed, the EPO was not defective because when issuing the EPO the DEHP was not of the view that special circumstances existed. Further, the Court rejected Mr Bond’s argument that he was denied procedural fairness. While the EPA granted Mr Bond a right to review the original decision to issue the EPO, there was no right to compel DEHP to make a review decision as the EPA provides that a refusal to review a decision constitutes a decision confirming the original decision. Further, as Mr Bond had lodged an appeal to the Court he was unable to demonstrate any prejudice from DEHP’s failure to carry out an internal review of its decision.
Despite the outcome in Bond, a number of issues remain on foot in the proceeding, including whether Mr Bond is a related person of Linc Energy Limited for the purposes of the EPA and whether the EPO was issued to Mr Bond prematurely given the $3,657,163 of financial assurances held by the DEHP in accordance with Linc Energy Limited’s environmental authorities.
The case demonstrates the willingness and capacity of DEHP to issue EPOs pursuant to the new chain of responsibility provisions, despite the accompanying guideline to the new regime not having been finalised. The DEHP is presently working with industry groups to prepare a draft guideline indicating a possible release in late 2016. It is anticipated that the guideline will shed some much needed light on the new chain of responsibility provisions and clarify the reach of their operation.