Land and Environment Court New South Wales

• Medium Neutral Citation: Oshlack v Rous Water (No 2) [2012] NSWLEC 111
• Hearing dates: 21-22 June 2011
• Decision date: 16 May 2012
• Jurisdiction: Class 4
• Before: Pepper J

Decision

Summons dismissed. The applicant is to pay the costs of the first and second respondent. However, if any party seeks an alternative costs order, then that party is to relist the matter within 14 days of the date of this judgment for further argument on the question of costs.

• Catchwords: JUDICIAL REVIEW: whether decisions by councils to uplift fluoride level in public water supplies and to construct a fluoride dosing plant invalid - whether the councils complied with s 111 of the Environmental Planning and Assessment Act 1979 - meaning of phrase "to take into account to the fullest extent possible" - "proper, genuine and realistic consideration" -whether irrelevant considerations taken into account - whether decisions vitiated by an error of law - whether there was a constructive failure to exercise jurisdiction - decisions valid.
• Legislation Cited: Environmental Planning and Assessment Act 1979, ss 110, 110E(c), 111, 112; Environmental Planning and Assessment Regulation 2000, cl 228(2); Fluoridation of Public Water Supplies Act 1957, ss 3, 6, 6A; Fluoridation of Public Water Supplies Regulation 2007; Local Government Act 1933, s 24; National Parks and Wildlife Act 1974; Protection of the Environment Operations Act 1997; Threatened Species Conservation Act 1995; Water Act 1912
• Cases Cited: Anderson v Director General, Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; Ex parte Hebburn; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; F Hannan Pty Ltd v Electricity Commission of New South Wales (1983) NSWLR 282; (1983) 51 LGRA 353; Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442; Guthega Developments Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353; (1986) 61 LGRA 401; Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242; Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 184 LGERA 104; Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; Oshlack v Rous Water [2011] NSWLEC 73; (2011) 184 LGERA 365; Parks & Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346; Parramatta City Council v Hale (1982) 47 LGRA 319; Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598; Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396
• Category: Principal judgment
• Parties: Al Oshlack (Applicant); Rous Water (First Respondent); Ballina Shire Council (Second Respondent); Lismore City Council (Third Respondent)
• Representation: Mr J Johnson (Applicant); Mr N J Williams SC with Ms V Bosnjak (First and Second Respondents); N/A (Applicant); Blake Dawson (First and Second Respondents)
• File Number(s): 40570 of 2010

Judgment

The Applicant Challenges Decisions to Fluoridate Public Water Supplies and to Build a Fluoride Dosing Plant

1 In the early twentieth century, Dr Frederick McKay, a dentist in the town of Colorado Springs, Colorado in the United States of America observed that many of the local inhabitants had brown mottled stains on their teeth. He also noticed a marked absence of tooth decay. As it transpired, the staining was caused by elevated levels of fluoride in the town water. Subsequent research established a causal link between the presence of fluoride in the water and the limited incidence of dental caries in the local population (Encyclopedia Britannica Inc, Dentistry (23 April 2012), Encyclopedia Britannica Online http://www.britannica.com/Ebchecked/topic/158069/dentistry).

2 This discovery led to the fluoridation of the public water supply of communities across the world, including Beaconsfield in Tasmania in 1953 (the first Australian public water supply to be fluoridated) and later Yass in New South Wales (the first public water supply in New South Wales to be fluoridated) (Australian Dental Association Inc, FluorideFAQs, http://www.health.nsw.gov. au/factsheets/general/water_ fluoridation.html).

3 The practice of fluoridating public water supplies is, however, neither universally undertaken nor universally accepted. There are communities and individuals who object to the compulsory fluoridation of public water by authorities. The applicant in these proceedings, Mr Alan Oshlack, is such a person. He is a long term resident of Lismore, a town in New South Wales, which is to have the level of fluoride in its public drinking water increased.

4 By summons filed 23 July 2010 Mr Oshlack challenges the following two decisions:

(a) first, the decision of the first respondent, Rous Water, made on 21 April 2010, to approve "the construction and operation of the Clunes, Dorroughby, Corndale and Knockrow Fluoridation Dosage Facilities" ("the Rous Water decision"); and

(b) second, the decision of the second respondent, Ballina Shire Council ("Ballina Council"), made on 27 May 2010, to approve the construction of a proposed fluoride dosing plant at Marom Creek, subject to conditions ("the Marom Creek decision").

5 "Rous Water" is the business name of Rous County Council.

6 The third respondent, Lismore City Council, entered a submitting appearance in the proceedings.

7 Of course, in this decision it is not for this Court to pronounce whether or not the fluoridation of public water supplies is beneficial or not. This is not the issue before the Court. Rather, the Court's function in these proceedings is to determine the success or otherwise of the challenges made by Mr Oshlack to the lawfulness of two decisions referred to above, as pleaded in the further amended points of claim.

8 In my opinion, for the reasons given below, neither decision may be impugned and the summons must be dismissed.

Issues for Determination

9 After some discussion between the parties, Mr Oshlack abandoned, on the first day of the hearing, two of the challenges to the impugned decisions pleaded in his further amended points of claim. In particular, he elected not to pursue the challenge founded upon s 112 of the Environmental Planning and Assessment Act 1979 ("the EPAA") and the claim that the fact finding process engaged in by Ballina Council and Lismore City Council was manifestly unreasonable, illogical or irrational. This meant that much of the evidence, in particular the expert evidence prepared by the parties in support of these claims, was thrown away. However, in light of the dismissal of the proceedings, it is not necessary for me to consider further the costs implications of this abandonment.

10 The remaining issues for determination raised in the pleadings are as follows:

(a)first, whether either Rous Water or Ballina Council failed to comply with s 111 of the EPAA and cl 228(2) of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulations") in making their respective decisions;

(b)second, whether Rous Water took into account an irrelevant consideration, namely, "erroneous" legal advice from Lindsay Taylor Lawyers;

(c)third, and closely allied to the second ground of review, whether Rous Water "made an error of law" pursuant to s 111 of the EPAA by acting on the belief that it had no power to exercise its discretion other than to make the Rous Water decision; and

(d)fourth, whether, in making their respective decisions, either Council constructively failed to exercise its jurisdiction because it misconstrued its powers and duty pursuant to Pt 5 of the EPAA.

The Regulation of Fluoride in the Public Water Supply

11 Much of the statutory regime for regulating the fluoridation of public water supplies was helpfully set out in the decision of Biscoe J in Oshlack v Rous Water [2011] NSWLEC 73; (2011) 184 LGERA 365 ("Rous Water (No 1)"), which concerned the determination of a preliminary question prior to the final hearing of these proceedings.

12 In that case, his Honour relevantly held that the Councils were required to comply with s 111 of the EPAA in making the decisions referred to above. This summary is an oversimplification of the reasoning and findings made by Biscoe J in Rous Water (No 1), but it will suffice for present purposes.

13 The addition of fluorine to public water in New South Wales is regulated by the Fluoridation of Public Water Supplies Act 1957 ("the Fluoridation Act"). Under that Act, the Secretary of the Department of Health ("the Department") may grant approval (s 6) or may direct (s 6A) a "water supply authority" to add fluorine to a public water supply under its control.

14 The Fluoridation Act relevantly provides:

6 Addition of fluorine to public water supplies

(1)Notwithstanding anything contained in any other Act, a water supply authority may, subject to the provisions of this section and the regulations, add fluorine to any public water supply under its control.

(1A)Notwithstanding anything contained in any other Act, a water supply authority shall, subject to this Act and the regulations, add fluorine to any public water supply under its control, if directed to do so by the Secretary.

(2)A water supply authority shall not add fluorine to any public water supply except with the approval of or at the direction of the Secretary.

(3)A person, not being a water supply authority, shall not add fluorine to any public water supply.

(4)A water supply authority making application for the approval of the Secretary under the provisions of this section shall specify in the application the public water supply in respect of which the approval is sought and shall furnish to the Secretary such information as the Secretary may in any case require.

...

(6) Any person, not being a water supply authority, who contravenes or fails to comply with any of the provisions of this section or any water supply authority contravening or failing to comply with any of the provisions of this section or any of the conditions attached to an approval granted to it under the provisions of this section, shall be guilty of an offence against this Act.

6A Directions

(1) The Secretary may, by notification published in the Gazette, direct a water supply authority to add fluorine to a public water supply.

(2) A direction may be given only if the water supply authority has referred the question of fluoridating the public water supply to the Secretary for consideration and the Secretary has received the advice of the Committee as regards the question.

...

(5) Any water supply authority contravening a direction or any terms attached to the direction is guilty of an offence against this Act.

 

15 The term "water supply authority" is defined in s 3 of the Fluoridation Act to include "any person or body, corporate or unincorporated, who or which supplies water to the public."

16 It is not disputed that Rous Water and Ballina Council are "water supply authorities" as defined under the Fluoridation Act.

17 Sections 110 and 111 of the EPAA are contained in Pt 5 of that Act and relevantly provide:

110Definitions

(1)In this Part:

...

approval includes:

(a)a consent, licence or permission or any form of authorisation, and

(b)a provision of financial accommodation by a determining authority to another person, not being a provision of such financial accommodation, or financial accommodation of such class or description, as may be prescribed for the purposes of this definition by a determining authority so prescribed.

determining authority means a Minister or public authority and, in relation to any activity, means the Minister or public authority by or on whose behalf the activity is or is to be carried out or any Minister or public authority whose approval is required in order to enable the activity to be carried out.

111 Duty to consider environmental impact

(1)For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.

(2)Without limiting subsection (1), a determining authority shall consider the effect of an activity on:

(a)any conservation agreement entered into under the National Parks and Wildlife Act 1974 and applying to the whole or part of the land to which the activity relates, and

(b)any plan of management adopted under that Act for the conservation area to which the agreement relates, and

(c)any joint management agreement entered into under the Threatened Species Conservation Act 1995, and

(d)any biobanking agreement entered into under Part 7A of the Threatened Species Conservation Act 1995 that applies to the whole or part of the land to which the activity relates.

(3)Without limiting subsection (1), a determining authority shall consider the effect of an activity on any wilderness area (within the meaning of the Wilderness Act 1987) in the locality in which the activity is intended to be carried on.

(4)Without limiting subsection (1), a determining authority must consider the effect of an activity on:

(a)critical habitat, and

(b)in the case of threatened species, populations and ecological communities, and their habitats, whether there is likely to be a significant effect on those species, populations or ecological communities, or those habitats, and

(c)any other protected fauna or protected native plants within the meaning of the National Parks and Wildlife Act 1974.

18 Clause 228(2) of the EPA Regulations provides that, for the purpose of Pt 5 of the EPAA, the factors that must be taken into account when consideration is being given to the likely impact of an activity on the environment under s 111 include:

(a)any environmental impact on a community,

(b)any transformation of a locality,

(c)any environmental impact on the ecosystems of the locality,

(d)any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality,

(e)any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations,

(f)any impact on the habitat of protected fauna (within the meaning of the National Parks and Wildlife Act 1974),

(g)any endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air,

(h)any long-term effects on the environment,

(i)any degradation of the quality of the environment,

(j)any risk to the safety of the environment,

(k)any reduction in the range of beneficial uses of the environment,

(l)any pollution of the environment,

(m)any environmental problems associated with the disposal of waste,

(n)any increased demands on resources (natural or otherwise) that are, or are likely to become, in short supply,

(o)any cumulative environmental effect with other existing or likely future activities,

(p)any impact on coastal processes and coastal hazards, including those under projected climate change conditions.

 

Approvals and Direction to Fluoridate

19 The following approvals were made and direction was given, and published, by way of notices, in the NSW Gazette:

(a) on 12 December 2007 pursuant to s 6A of the Fluoridation Act the Director-General of the Department of Health directed Rous Water to fluoridate the water supply of the local government area of the Richmond Valley Council;

(b) on the same day the Director-General approved, pursuant to s 6 of the Fluoridation Act, the addition by Rous Water of fluoride to the water supply of the local government area of Lismore City Council;

(c) on 20 August 2009 the Director-General approved pursuant to s 6 of the Fluoridation Act the addition of fluoride by Rous Water of the water supply of the local government area of Ballina Council; and

(d) on 11 December 2009 pursuant to s 6 of the Fluoridation Act the Director-General approved the fluoridation by Ballina Council of the water supply of the local government area of that Council situated down stream of a proposed fluoride plant at Marom Creek.

20 The approvals and the direction were for the upward adjustment of fluoride in the water supply by of 1 mg/L.

21 As was noted by Biscoe J in Rous Water (No 1) each of the approvals and the direction was subject to three relevantly identical conditions or terms, the only difference being that the date for the commencement of the upward adjustment of fluorine varied in each case. The conditions or terms were thus that (at [9]):

1.[The authority] may only add fluorine to the [geographical area] water supply in accordance with any provisions, directions or approvals made under the Fluoridation of Public Water Supplies Act 1957, the Code of Practice for the Fluoridation of Public Water Supplies made under that Act as amended from time to time, and the Fluoridation of Public Water Supplies Regulations 2007 or any subsequent Regulation made in its place; and

2.[The authority] shall maintain the content of fluorine in the [geographical area] water supply at a target concentration level of 1.0 mg/L with an overall accuracy of +/-5% and within an operating range of not more than 1.5 mg/L and not less than 0.9 mg/L and generally in accordance with the relevant provisions of the Code of Practice for the Fluoridation of Public Water Supplies; and

3.[The authority] shall have commenced the upward adjustment of fluorine in the [geographical area] water supply by no later than [date], unless otherwise approved by the Chief Dental Officer of NSW Health or that Officer's approved representative.

22 The specified dates in condition or term three for commencing the upward adjustment of fluorine were respectively as follows (summarised in Rous Water (No 1) at [10]):

(a) the Richmond Valley Direction - 31 December 2008;

(b) the Lismore Approval - 31 December 2008;

(c) the Ballina Approval - 31 December 2010; and

(d) the Marom Creek Approval - 31 December 2010.

23 On 14 March 2011 the commencement dates for the upward adjustment at Lismore, Richmond Valley and Ballina was extended by the Chief Dental Officer to 30 June 2012.

24 To date, Rous Water and Ballina Council have neither commenced construction of any fluoridation plants nor commenced the upward adjustment of fluorine in accordance with the approvals or direction.

Decisions are Made to Further Fluoridate Public Water Supplies

25 The facts underpinning this application are largely not in dispute. They emerged from the agreed bundle of documents that comprised the majority of the evidence before the Court (the bundle was ultimately admitted into evidence without objection). It is necessary, however, to detail in depth the chronology of the decision-making process of both Councils leading up to the two decisions given the pleaded grounds of review.

26 On 14 June 2006, the General Manager of Rous Water recommended that Rous Water support, in principle, fluoridating its public water supply. In a file note dated 14 June 2006, made in preparation for Rous Water's meeting on 21 June 2006, it was recorded that the fluoridation of public water was contentious and that many submissions, reports, scientific views and evidence, both for and against fluoridation, had been provided to the Council. But the file note recorded that the adjoining water supply authority in the Clarence Valley had been fluoridating its water since the 1960s "without reported concerns".

27 The minutes of the meeting of Rous Water held on 21 June 2006 recorded that it was the view of the NSW Department of Health that fluoride was safe and effective and that "90% population NSW fluoridated - no evidence of concern".

28 On 19 July 2006, Rous Water resolved to support in principle the decision to fluoridate the water supply of its constituent councils, where a council advised that it supported fluoridation of its water supplies. The constituent councils included Richmond Valley Council, Lismore Council, Ballina Council and Byron Shire Council. Appended to the minutes of that meeting was a letter from the World Health Authority dated 11 February 2005 that stated, "water fluoridation at recommended low concentrations is safe for the environment and is safe as well for human health in general."

29 Lismore Council and Richmond Valley Council indicated support for the fluoridation of their water in July 2006.

30 On 26 March 2009, Ballina Council made a similar resolution.

31 A letter from the Acting Director-General of NSW Health to Mr Paul Muldoon, the General Manager at Rous Water, dated September 2009, highlighted the utility of the fluoridation of public water as a means of improving the dental health of the community and noted that "the process of water fluoridation has been consistently monitored since its inception and continues to be the subject of reviews and research to confirm its efficacy and safety." The letter went on to state that "at this [low] level there is no risk to the population or the environment."

32 On 24 December 2009 a draft Review of Environmental Factors ("the draft REF") prepared by NSW Public Works was sent by Rous Water to Ballina Council for its consideration, particularly in respect of the proposed Marom Creek fluoridation plant. Rous Water also placed the draft REF on public exhibition and invited submissions from the public.

33 The draft REF was a detailed document. It noted that Rous Water had received 58 public submissions, of which 56 expressed opposition to the proposed fluoridation. These submissions covered a range of issues including the alleged detrimental impacts of fluoridation on human health and on the environment in general.

34 The draft REF considered the location of the fluoridation plants in the context of the local environments in which they were to be constructed and operated. It stated the following:

(a)that the draft REF had been prepared in accordance with s 111 of the EPAA and in consideration of the factors listed in cl 228(2) of the EPA Regulations;

(b)that the works could be managed to avoid pollution as defined under the Protection of the Environment Operations Act 1997 and that no licence or approval under that Act would be required;

(c)that the design of the fluoridation plants had been undertaken in accordance with the Code of Practice for the Fluoridation of Public Water Supplies (as required under the Fluoridation of Water Supplies Regulation 2007) ("the Code"). The aim of the Code was to achieve best practice in the establishment of fluoridation plants in New South Wales to meet, amongst other things, the environmental requirements of the relevant legislation;

(d)if groundwater was encountered during construction, then Rous Water would need to consult with the NSW Office of Water to determine if an approval under the Water Act 1912 was required;

(e)there were no known Aboriginal sites in the vicinity of the works and no impacts to Aboriginal sites were predicted, and therefore, no approval was required under the National Parks and Wildlife Act 1974;

(f)there was minimal potential for the proposed works to have a significant impact on threatened species under the Threatened Species Conservation Act 1995;

(g)the proposal would not impact on matters of national environmental significance;

(h)a synopsis of the elements of the environment that could potentially be affected by the proposed works at each site was given. This included a study of the geology, soil, topography, surface water, flora and fauna, archaeology and heritage, and the acoustic environment; and

(i)a detailed analysis was provided of the likely environmental impacts associated with the construction and operation of the fluoridation dosing plants. This included an examination of the impacts on noise, air quality, water quality, including groundwater quality, flora and fauna, archaeological issues and chemical hazard management. The draft REF specifically concluded that "it is assessed that there is limited opportunity for the operation of the fluoridation plants to result in surface water impacts" and that "no impacts to flora and fauna have been identified".

35 On 29 December 2009, Rous Water published a notice in terms similar to an earlier notice published on 9 January 2009 stating:

As directed by the NSW Department of Health, Rous Water proposes to construct and operate four fluoridation plants...

36 Similar notices were published in The Northern Rivers Echo on 14 and 21 January 2010 and in The Northern Rivers Star on 16 January 2010.

37 On 20 January 2010 Rous Water's General Manager, Mr Kyme Lavelle, wrote to Mr Patrick Morrisey at Byron Shire Council indicating that Rous Water may be required to add fluorine to a public water supply either by way of approval or direction and that "failure to comply with an Approval or Direction (including the terms and conditions of an Approval or Direction) is an offence under the Act".

38 On 4 February 2010, Mr Wayne Franklin, the Technical Services Director for Rous Water, prepared a report for that Council to advise it on the results of public consultation and an independent assessment of the draft REF for the construction and operation of the fluoridation plants. This report also noted that failure to comply with an approval or direction was an offence under the Fluoridation Act and that the deadlines prescribing when Rous Water had to commence adding fluorine to the water were mandatory. It further stated that "over 90% of the NSW population receives fluoridated water and it can be expected that NSW Health has considered the potential impact on the environment of the use and disposal of fluoridated water", but it went on to note that "at the time of preparing this report it has not been possible to determine if NSW Health has considered this matter". The report stated that the Department of Health had been requested to address the matter and to "confirm that fluoridated water does not have a significant impact on the receiving environment". Once the advice was received, a recommendation to determine the draft REF could be made. Accordingly, the recommendation contained in the report was that:

Based on the Determining Authorities Report and the REF findings, the construction and operation of the Clunes, Dorroughby, Corndale and Knockrow fluoridation plants will not have a significant environmental impact.

39 On 8 February 2010, Newton Denny Chapelle ("NDC"), a planning, engineering and surveying consultancy, formally provided to Rous Water a Determining Authorities Report. The Report recommended that Rous Water should not determine the draft REF until adequate consideration had been given to the effect of the discharge of fluoridated water on the environment, which NDC considered had not been adequately evaluated in the draft REF.

40 On 12 February 2010 an email from Mr Wayne Franklin at Rous Water to Mr Malcolm Tomkins at Ballina Council stated that:

...the report by NDC has found that the REF has not considered the impact of Fluoridated water on the receiving environment and recommends that Health Department has been asked to confirm that the fluoridated water will not have a significant impact on the receiving environment. I have requested the Health Department to confirm this and will table this information at next weeks Rous Council meeting assuming the Health will respond in time.

 

41 On 15 February 2010, Dr Shanti Sivaneswaran, the Principal Adviser to the Department of Health's Centre for Oral Health Strategy wrote to Rous Water to confirm the Department's advice that "scientific evidence supports the fluoridation of water supplies as safe for the environment and beneficial for health. A comprehensive literature review conducted in 1990 revealed absolutely no negative environmental impacts as a result of water fluoridation".

42 On 16 February 2010, NDC sent a letter to Rous Water which referred to the letter above and concluded that "in respect of the environmental impact of fluoridated water on the receiving environment, we note NSW Health in determining to add fluoridated water into the water supply has addressed this issue as reflected in their advice." As a consequence, NDC concluded that the draft REF had addressed the issue of the impact of fluoridated water on the receiving environment. This opinion was communicated to Rous Water on the same day.

43 Notwithstanding this assessment, and the letter from the Centre for Oral Health Strategy, on 17 February 2010 Rous Water resolved to defer consideration and determination of the draft REF and to seek legal advice on its options:

MOVED (Staples/Ekins) that Rous Water NOT determine the REF, dated December 09 Report No: DC09126, prepared by NSW Public Works until:

1.Full regard has been taken of the effects of discharge of fluoridated water to the environment (Section 111).

2.All requirements of the Department of Health Code of Practice for fluoridating water supplies have been shown to be met. In particular, Rous Water is to review the actions of each of the Constituent Councils seeking fluoridation and to ensure that the requirements of Section 4.1.1.1 of the Code have been met.

3.The fullest environmental impact, including public health and welfare, is considered.

 

44 Blake Dawson solicitors ("Blakes") were thereby engaged by Rous Water to provide legal advice in relation to the matter.

45 On 19 February 2010, the Chief Dental Officer from the Centre for Oral Health Strategy forwarded to Rous Water a copy of a letter from the Environment Protection Authority ("the EPA") to the Mid North Coast Area Health Services, dated 25 June 2004. The letter stated that "in cases where artificially fluoridated water is supplied to NSW communities by water authorities, the level of fluoride is not greater than 1mg/L. ...At this concentration fluoride is not considered environmentally harmful."

46 A final REF ("the REF") was produced in March 2010 by NSW Public Works to give effect to the approvals and direction in accordance with the EPAA. The REF was again exhibited to the public.

47 On 5 March 2010, NDC submitted to Ballina Council a Determining Authorities Report concerning the proposed fluoridation plant at Marom Creek. The Report had regard to the REF, the submissions received from the public and the letter dated 15 February 2010 from the NSW Department of Health's Centre for Oral Health Strategy to Rous Water. The Report recommended that the Council endorse the REF and stated that:

As referenced within this report, the NSW Health Centre for Oral Health Strategy in letter dated 15 February 2010 to Rous Water addressed the issue of water fluoridation on the receiving environment. Based on the contents of this advice, we submit consideration of the likely impacts generated by the proposal which are statutorily required to be addressed have not been adequately considered. In specific respect to the environmental impact of fluoridated water on the receiving environment, we note NSW Health as the determining authority for the addition of fluoride to the water supply has addressed this issue as reflected in their advice to Rous Water.

We believe the REF lodged by NSW Public Works has been prepared with due consideration of the relevant legislative requirements and the construction and operation of the fluoride dosage plant at Marom Creek is not considered to result in any unacceptable or unsustainable environmental impacts.

48 On 11 March 2010 Blakes provided the advice requested by Rous Water on 17 February 2010 ("the Blakes advice"). Relevantly the Blakes advice opined:

The memorandum specifically considers the following five questions in relation to the Project:

(a)Does the review of environmental factors (REF) prepared for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) for the Project, in combination with the supplementary documents provided to Rous Water by the NSW Department of Health (NSW Health) and the NSW Environment Protection Authority (EPA), in terms of their consideration of the impacts of the Project on:

(i)human health; and

(ii)receiving waters,

adequately comply with section 111 of the EP&A Act?

(b)Is there a risk, should Rous Water determine to proceed with the Project based on its consideration of the REF and its supplements, that a third party could successfully challenge the validity of this decision in the NSW Land and Environment Court on the ground that Rous Water failed to comply with section 111 of the EP&A Act?

...

(d)Would a resolution in the form of the motion proposed for the meeting of Rous Water Council on 17 March 2010 in relation to the Project (Proposed Motion) [not to determine the RFF) expose Rous Water to any potential legal liabilities?

(e)What steps do we recommend Rous Water take, from this point onwards, to ensure its compliance with the applicable law?

2.1In summary, our answers to the five questions are:

(a)the Project REF, read together with the supplementary information provided to Rous Water by NSW Health and the EPA, adequately complies with the requirement under section 111 of the EP&A Act to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the Project;

(b)there is no material risk that a third party could successfully challenge the validity of a decision of Rous Water, if made, to proceed with the Project based on its consideration of the Project REF and its supplements;

...

(d)the matters the subject of the Proposed Motion have already been addressed to the extent required by law.

Furthermore, the wording of paragraphs 1 and 3 of the Proposed Motion has the potential to expose Rous Water to legal liability, should a resolution in the form of the Proposed Motion be passed. In this regard, while the drafting is not free from ambiguity, these paragraphs of the Proposed Motion would appear to operate to require Rous Water to:

(i)not accept the advice already received from NSW Health and the EPA as to the benign impact of fluoridation on human health and receiving waters; and

(ii)commission independent investigative enquiries as to the likely impact on human health and receiving waters.

Should this occur, Rous Water would be exposed to ongoing liability for offences committed under sections 6(6) and 6A(5) of the FPWS Act, as a consequence of the delay in complying with condition 3 of each of the Lismore Gazette Notice and the Richmond Valley Gazette Notice;

(e)having regard to (a) to (d), we recommend that Rous Water take the following steps to limit its ongoing exposure to legal liability in connection with the Project:

(i)request the Chief Dental Officer of NSW Health's written confirmation of his approval, pursuant to condition 3 of the Lismore Gazette Notice and the Richmond Valley Gazette Notice, of the extension of the deadline of 31 December 2008 for the commencement of the upward adjustment of fluorine to the water supply in the Lismore and Richmond Valley local government areas;

(ii)if it becomes necessary having regard to the environmental assessment and construction timeline, request the Chief Dental Officer of NSW Health's approval for an extension of the 31 December 2010 deadline imposed in condition 3 of the Ballina Gazette Notice;

(iii)rely on the existing REF and the supplementary information provided by NSW Health and the EPA to assess the Project under Part 5 of the EP&A Act without further delay; and

(iv)ensure that the four dosing plants the subject of the Project are constructed within a timeline so that Rous Water may comply with any new deadlines imposed under conditions 3 of the Gazette Notices.

49 On 17 March 2010, Rous Water sought from the Chief Dental Officer an extension of time to commence fluoridation of the public water supply so that it could seek a report on the cost of providing further expert advice from a professional environmental toxicologist to inform it on the effects of the discharge of fluorine into the environment. The extension was refused on 26 March 2010. In his letter of refusal the Chief Dental Officer stated that there was "no evidence to support further environmental studies".

50 On that day an email exchange took place between Mr Wayne Franklin at Rous Water and Mr John Truman at Ballina Council. In an email from the former to the latter, Mr Franklin stated that:

Based on the expected letter from Health [concerning Rous Water's request for an extension of time] council should proceed with the project otherwise it will be breaching the Fluoride Act.

Once we have the letter from Health we will most likely take some more legal advice so we can confidently advise Council what its options are.

51 Thus on 29 March 2010 Rous Water instructed Dr Lindsay Taylor from Lindsay Taylor Lawyers to provide legal advice in respect of the refused extension of time.

52 The advice was provided on 16 April 2010 ("the Lindsay Taylor advice"):

Advice required

4 The County Council has requested advice on the options available to it in relation to the Proposal now that NSW health has formally refused extension of the deadlines for the commencement of the fluoridation of the public water supplies on the relevant council areas.

Summary

5 The County Council is currently contravening a requirement of the Richmond Valley Direction and the Lismore Approval.

6 The County Council cannot lawfully decide to seek further expert advice before proceeding with the Proposal.

7 The County Council has sufficient information within the meaning of s111 of the EPA to make a determination in relation to the environmental impacts of the carrying out of the Proposal.

8 The governing body of the County Council has no power under the Local Government Act 1993 (LG Act) to do otherwise than implement the Secretary's direction and approvals without delay.

9 The members of the governing body have a duty to ensure that the County Council does not contravene or continue to contravene the approvals or the direction.

10 Any member of the governing body who causes the County Council to breach the approvals or the direction places themselves in potential breach of the LG Act, including the County Council's Code of Conduct.

11 If so, a member would potentially be liable to a range of sanctions under the LG Act for misbehaviour and the possibility of a surcharge being imposed.

 

53 Accordingly, on 21 April 2010 Rous Water resolved to:

1. Note the legal advice dated 16 April 2010 provided by Lindsay Taylor Lawyers.

2. Note the legal advice dated 11 March 2010 provided by Blake Dawson.

3. Approve the findings in the Review of Environmental Factors and the Determining Authorities Report incorporating the letter dated 16 February 2010 from Newton Denny Chapelle.

4. Approve the construction and operation of the Clunes, Dorroughby, Corndale and Knockrow fluoridation plants to be undertaken in accordance with the recommendations in the Determining Authorities Report and the letter from Newton Denny Chapelle dated 16 February 2010.

5. Approve an amendment to the staff structure to include the addition of one full-time permanent position of Water Treatment Plant Operator.

6. Approve the General Manager to execute the capital works funding Agreement between the Health Administration Corporation for an on behalf of NSW Health, and Rous Water.

7. Call open tenders for the construction of the proposed fluoride dosing plants.

54 On 27 May 2010 Ballina Council resolved (emphasis added):

That Council approves the construction of the proposed fluoridation dosing plant at Marom Creek WTP, subject to the recommended conditions of the Determination Report.

55 The purpose of the construction of the fluoridation dosing plant was to facilitate the addition of fluoride to the public water supply in accordance with the approval granted to Ballina Council on 11 December 2009.

56 Under the heading "Background" in the minutes of the Ballina Council meeting on 27 May 2010, it was noted that Ballina Council, Lismore City Council and Richmond Valley Council had each resolved to supply fluoridated water to their consumers. The minutes stated that "the NSW Department of Health has directed Rous Water to fluoridate the public water supply under their control...and has also directed Ballina Council to fluoridate the supply from Marom Creek". The latter statement was plainly not an accurate description of the approval given to Ballina Council.

57 Under the heading "Information" the minutes stated:

Council's Regulatory Services Group has reviewed the Determination Report and considers it has comprehensively addressed the relevant environmental and statutory considerations under Part V of the Environmental Planning and Assessment Act, 1979. Accordingly, the Regulatory Services Group concurs with the recommendations of the Determination Report.

Given the small capacity of Marom Creek plant at 0.5ML/day, the background levels of fluoride in the raw water supply, the raising of this to one part per million in the reticulated supply by his plant and the volume of water in the estuary receiving waters of the Wardell village, Cabbage Tree Island and rural supplies, it is unlikely that there would be any significant adverse impact on the receiving environments of unconsumed/waste waters.

58 On 23 December 2010 a notice was posted on the Rous Water website stating that:

Ballina, Lismore and Richmond Valley Councils have each decided to supply their consumers with fluoridated water. The NSW Department of Health has issued Rous Water with a direction to do this which means that purpose built dosing plants need to be constructed.

59 The notice provided a link to the REF and the public were invited to make submissions during the public consultation phase.

The Councils Did Not Fail to Comply with Either the EPAA or the EPA Regulations

60 Essentially, Mr Oshlack argues that, in making the two decisions, neither Rous Water nor Ballina Council properly considered the impact of the relevant fluoridation activities on the environment as mandated by s 111 of the EPAA and cl 228(2) of the EPA Regulations.

61 This was demonstrated, he submitted, by the absence of information before either Council as to the fate of fluoridated water and its interaction with, and impact upon, the receiving environment. In the alternative, Mr Oshlack contended that there was no process of evaluation sufficient to constitute any real, proper or genuine consideration of the impact of fluoridation on the environment to achieve compliance with s 111 of the EPAA.

62 Section 111 of the EPAA imposes a duty on a determining authority, in this instance, the two Councils, to "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity". The provision goes on to list some of the matters that the determining authority must consider (mandatory language is employed, viz, "shall") in discharging their duty.

63 As the Councils correctly submitted, however, the power to make the Rous Water and the Marom Creek decisions was exercisable pursuant to s 24 of the Local Government Act 1993, which provides that a local council may carry out activities appropriate to the current and future needs of the local community and the wider public:

24Provision of goods, services and facilities and carrying out of activities

A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law.

64 The distinction between the duty imposed on both Councils and the power they exercised to make the two decisions under review is not unimportant given the significance attached by Mr Oshlack to the legal advice sought and received by Rous Water and Ballina Council prior to making their respective decisions. This is because, either the Councils discharged their statutory duty or they did not. The reasons why - for example, reliance upon legal advice, correct or otherwise - are irrelevant.

65 The duty upon each Council as the determining authority to "examine and take into account to the fullest extent possible" the matters obliged to be considered in s 111 is, upon that provision's proper construction, qualified by the word "reasonably". That is to say, the Councils' duty is to examine and take into account the matters referred to in that section to the fullest extent reasonably possible.

66 In Guthega Developments Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 (at 366D-G); (1986) 61 LGRA 401 the Court of Appeal, drawing upon the decision in F Hannan Pty Ltd v Electricity Commission of New South Wales (1983) 3 NSWLR 282; (1983) 51 LGRA 353 (at 365-366), held in relation to s 111 of the EPAA (citations omitted):

It was then submitted that alternatively to the challenge to the environmental impact statement, with which I have dealt, the Minister, as determining authority, failed, in considering his final decision to grant or withhold the leases, to "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity" as enjoined by the Environmental Planning and Assessment Act, s 111. In F Hannan Pty Ltd v Electricity Commission of New South Wales, Cripps J (at 365-366) expressed the view that s 111 was mandatory and that compliance with its requirements was "pivotal to a proper working of Pt V of the Act". I agree, with respect, that its requirements are mandatory, and it is obviously intended to draw attention to the responsibility imposed upon a determining authority to protect the environment against the harmful effects of a projected development. At the same time, it can scarcely be read literally and without some modification of its terms. For example, the phrase "to the fullest extent possible" would present an insoluble problem to an administrator since it would be necessary to search the aggregated knowledge of the experts of the world in order to discharge the almost limitless burden imposed by the word "possible". "Possible" is of a similar kind to "foreseeable", a word etched in the professional cores of common lawyers and capable of very extensive application indeed. Accordingly, in my view, some element of reasonableness must be introduced and may be achieved by reading the section as if the word "reasonably" was inserted before "possible". This is the conclusion to which Cripps J came and, in his judgment, he read the expression "to the fullest extent possible" as incorporating "a concept of reasonableness and practicability. The purpose of s 111 is to impose upon determining authorities an obligation to consider to the fullest extent reasonably practicable, matters likely to affect the environment".

 

67 This construction has been applied in the Court of Appeal in Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 (at [68]) and more recently in this Court in Parks & Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346 (at [158] per Biscoe J).

68 Mr Oshlack relied on Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 (at [20]-[23]) to submit that the construction of the phrase "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity" was informed by the "level of particularity" contained in cl 228(2) of the EPA Regulations. Although that case concerned a very different statutory framework, this proposition, at a broad level, is undoubtedly correct.

69 An additional matter to consider in determining this ground of review is the absence of any challenge by Mr Oshlack to the direction or approvals given by the Secretary of the Department of Health to uplift the fluoride levels. The Secretary is not a party to the summons.

70 The Fluoridation Act confers the decision-making power of giving a direction or granting an approval upon the Secretary of the Department of Health. In carrying out these functions the Secretary is advised by the Public Water Supplies Advisory Committee ("the Committee").

71 It is not suggested by Mr Oshlack in either his pleadings or his submissions that Rous Water or Ballina Council were not entitled to rely on the validity of the approvals or direction. Plainly they were.

72 Pursuant to s 110 of the EPAA, both the Secretary and the two Councils are "determining authorities" for the purpose of Pt 5 of the EPAA.

73 Section 110E(c) of the EPAA provides:

110E Exemptions for certain activities

Sections 111 and 112 do not apply to or in respect of the following (despite the terms of those sections):

...

(c) an activity (or part of an activity) that has been approved, or is to be carried out, by another determining authority after environmental assessment in accordance with this Part.

74 While the effect of this provision is not to remove the obligation from either Rous Water or Ballina Council to comply with s 111 of the EPAA, the fact that there were valid authorisations, a valid direction and valid approvals under the Fluoridation Act further logically impacts upon the reasonableness required to discharge their duty under s 111.

75 In addition, it may be presumed, absent challenge, that as a "determining authority" the Secretary considered to the fullest extent reasonably possible all matters affecting the environment pursuant to s 111 of the EPAA. This is, in my opinion, a matter that Rous Water and Ballina Council could also have regard to in the performance of their obligations under s 111 of the EPAA.

76 With these qualifications on the extent of the duty statutorily imposed on the Councils in this instance, was the duty discharged? In my opinion, having regard to the chronology detailed above and having regard to the material before Rous Water and Ballina Council at the time they made their respective decisions, it was.

77 This material included the following:

(a)the fact that the water supply adjoining that under the control of Rous Water had been fluoridated since 1960. I readily infer that Rous Water was aware of this fact;

(b) the Department of Health's letter to Rous Water on 15 February 2010 referring to the comprehensive literature review conducted in 1990 and confirming its advice that scientific evidence supported the fluoridation of water supplies as safe for the environment, beneficial for health and revealing absolutely no negative environmental impacts as a result of water fluoridation;

(c)the letter sent by NDC to Rous Water on 16 February 2010, referring to the Department of Health's letter above, and stating that the Department, in determining to add fluoridated water into the water supply, had addressed the issue of the environmental impact of fluoridated water on the receiving environment;

(d)a forwarded copy of the letter sent on 19 February 2010 by the EPA to the Chief Dental Officer, which noted that fluoridated water had been supplied by water authorities throughout New South Wales and that the concentration of 1mg/L was not considered environmentally harmful;

(e) the REF, which noted that:

(i)the proposed fluoridation plant sites were of a generally disturbed nature and it was considered "unlikely that any of the sites would offer suitable habitat for threatened flora or fauna";

(ii)the proposed plant at Knockrow was located on the Pacific Highway at the site of a former water treatment plant and existing water supply reservoir. The site consisted of a lawn and landscaped plants with poor quality fauna habitat and no fauna observed at the site;

(iii)the proposed plant at Clunes was located on a reserve owned by Lismore City Council opposite an existing metering pit which received weekly maintenance visits. The site adjoined a macadamia orchard and contained Camphor Laurel, a noxious weed. The site contained poor fauna habitat and, again, no fauna was observed on it;

(iv)the proposed plant at Corndale was located in a rural area where grazing was the dominant rural activity. It was next to two existing water supply reservoirs. The site comprised pasture grasses and had been cleared of trees and native vegetation. Similarly, the site was considered to be of poor quality fauna habitat and no fauna was observed on it;

(v)the proposed plant at Dorroughby was located on land owned by Rous Water and was next to two existing water supply reservoirs and existing infrastructure. The land had been cleared of vegetation. There were no trees present and the vegetation consisted of mown grass and weeds. No fauna was observed on the site; and

(vi)the proposed Marom Creek plant was located within the Marom Creek water treatment plant site. The site consisted of mown grass within the water treatment plant grounds and the surrounding land was dominated by macadamia plantations;

(f) a review by NDC of the public submissions received during the public exhibition of the REF, completed for the purposes of preparing the Determining Authorities Reports for both Ballina Council and Rous Water; and

(g) the Determining Authorities Report submitted to Ballina Council by NDC, which had regard to the REF and recommended that the Council endorse the REF because it had been prepared with due consideration of the relevant legislative requirements. The Report stated that the construction and operation of the fluoride dosage plant at Marom Creek was "not considered to result in any unacceptable or unsustainable environmental impacts."

78 In light of this and other material concerning the effects of fluoridated water on the environment, both at the sites of the proposed fluoridation plants and on the receiving waters, I find that both Rous Water and Ballina Council adequately discharged their duty pursuant to s 111 of the EPAA and cl 228(2) of the EPA Regulations insofar as, in my opinion, each took into account to the fullest extent reasonably possible all matters affecting or likely to affect the uplift in water fluoridation on the environment.

79 The consideration of this material in the context of the long history and extensive coverage of fluoridation in this State, a fact that was known to the Councils, cannot be ignored. Neither can the fact that Rous Water was sufficiently diligent in relation to the discharge of its duty that it sought and obtained legal advice as to its regulatory obligations under the EPAA and the Fluoridation Act.

80 In making these findings it follows that I reject the less than implicit submission made by Mr Oshlack that it was incumbent upon each of Rous Water and Ballina Council to, independently from each other or from the Secretary of the Department, undertake a comprehensive de novo investigation into the environmental effects of water fluoridation in order to comply with s 111 of the EPAA. In considering to the fullest extent reasonably possible the matters contained in that provision and in cl 228(2) of the EPA Regulations, both Rous Water and Ballina Council were entitled to have regard to relevant material already in existence. To do so was not an abrogation of their duty provided they separately discharged their function under s 111.

81 Finally, it is important to recall that the direction and approvals were to uplift the level of fluoride in the water, not to introduce fluoride into completely unfluoridated water. As a consequence, and while in no way circumscribing the nature of the duty imposed by s 111 of the EPAA, the scope of what was reasonably required to be examined "to the fullest extent possible" in the discharge of any duty under s 111 was necessarily confined by this fact.

82 In the alternative, Mr Oshlack submitted that the Councils failed to give "proper, genuine and realistic consideration" of relevant matters contained in s 111 of the EPAA.

83 The genesis of the phrase "proper, genuine and realistic consideration" is attributed to Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 (at 292). Although it was criticised by Basten JA in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 (at [79]) lest it "encourage a slide into impermissible merits review", and caution was urged in its use in Anderson v Director General, Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 (at [57] per Tobias JA), the High Court has nevertheless continued to employ this formulation (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [26], [32] and [34]).

84 The gravamen of Mr Oshlack's complaint in this regard is that Rous Water and Ballina Council considered themselves compelled by the direction and approvals given to them by the Secretary to the Department of Health to fluoridate the public water supplies under their control, and therefore, neither had given proper, genuine or realistic consideration to the mandatory matters contained in s 111 of the EPAA and cl 228(2) of the EPA Regulations.

85 This was most tolerably apparent, Mr Oshlack submitted, in Rous Water's requests for legal advice to clarify its obligations pursuant to the direction and approvals. Further, Rous Water demonstrated a belief, evident in the language employed in its minutes of meetings and public notices and confirmed by the erroneous advice, that it had no discretion whatsoever to refuse to comply with the approvals and direction. Ballina Council considered itself equally fettered, having also received the Lindsay Taylor advice and employing similar language.

86 Thus, Mr Oshlack submitted, the decisions made by Rous Water and Ballina Council were made in circumstances of "duress" occasioned by the false belief that they had no option but to resolve to add fluoride to the water.

87 There are two reasons why this argument must be rejected. First, the inference Mr Oshlack invites the Court to draw from the material, namely, that the Councils considered that they were compelled to make the decisions they did, is, in my opinion, misconceived. That various Council documents describe the uplift of fluoride levels in the public water supplies in nondiscretionary terms is explicable by recourse to the language employed in s 6A of the Fluoridation Act ("the Secretary may, by notification published in the Gazette, direct a water supply authority to add fluorine to a public water supply": s 6A(1)), and the express language of the provisions making it an offence not to comply with or to contravene a direction or any terms attached to a direction (s 6A(5)) or the conditions attached to an approval (s 6(6)).

88 Read in this context, the material does no more than pick up the words of the statute and the various notices published in the Gazette and elsewhere employing similar, if not identical, language. There is no cogent evidence permitting the inferences to be drawn contended for by Mr Oshlack, and I decline to do so.

89 Second, to the extent that this submission relies on the provision of the legal advices referred to above, Mr Oshlack mischaracterises the content, and erroneously presumes the effect, of those advices.

90 Importantly, the Blakes advice states that the Council had sufficient material before it to satisfy s 111 of the EPAA and that the Council should proceed to assess the environmental impacts of the proposed uplifts and dosing plant construction. The advice does not mandate the outcome of the assessment, rather it states that the Council has sufficient information to proceed to an assessment and that any failure to do so may result in a breach of the Fluoridation Act. The Lindsay Taylor advice is in similar terms.

91 In this regard it should be noted that, under this ground of review, the task for the Court is to determine whether or not Rous Water and Ballina Council complied with s 111 of the EPAA. This is an objective inquiry. Thus even if the Councils held a subjective view that the material before them was inadequate, this view was irrelevant. Provided the Councils examined and took into account the matters referred to in s 111 of the EPAA (and cl 228(2) of the EPA Regulations) to the fullest extent reasonably possible, each Council discharged its duty. The same result would follow if the Councils believed that they had taken into account the matters referred to in s 111 to the fullest extent reasonably possible, but as a matter of objective fact they had not. The subjective beliefs of the Councils could not save what would otherwise be a decision infected with error.

92 In any event, there is insufficient evidence upon which it can reasonably be concluded that the Councils were somehow intimidated into making their decisions. On the contrary, the chronology of the decision-making process reveals that each Council engaged in its task in a cautious and thorough manner. That the vote by Rous Water was not unanimous (four councillors voted against the proposed resolution) strongly indicates, in my opinion, that its will was not overborne in the manner suggested by Mr Oshlack.

93 By way of illustration, the decision in Kindimindi concerned the alleged failure of Lane Cove Council to apply its collegiate mind to the consideration of a development application to build a shopping centre. The essence of the complaint was that at least three of the eight councillors had not had sufficient time to adequately consider the material provided to them before the meeting at which the application was determined. This was obviously a subjective assessment in the mind of the councillors.

94 In rejecting this challenge, and in emphasising that the assessment was objective in nature, Basten JA applied the reasoning in the decision of Parramatta City Council v Hale (1982) 47 LGRA 319. He summarised that case in the following terms (at [63], emphasis added):

63 In Parramatta City Council v Hale (1982) 47 LGRA 319, this Court considered the decision-making process involved in giving approval to a large sports stadium on Cumberland Oval. The decision of the Council was set aside on the basis that it had failed to give proper consideration to matters specified by statute as matters required to be considered. As noted by Street CJ (at 335):

"A normal prerequisite to taking a matter into consideration is that the members of the council should have an opportunity of understanding the relevant implications of the proposal before them in relation to the topics that they are required to take into consideration."

In the circumstances of that case, both the Land and Environment Court and the majority in this Court were satisfied, on an objective appraisal of the materials before the Council, that the complexity of the issues, changes made from the recommendations presented by expert officers of the Council, followed by a decision which, in the material respects left important aspects virtually at large, demonstrated that there had been a failure to take mandatory considerations into account.

95 His Honour's comments in Kindimindi concerning "the way this particular ground was presented" are apposite to the present case (at [73]). In that case Basten JA referred to the "orthodox principle that mandatory considerations, failure to take which into account will constitute reviewable error, are those mandated by the relevant legal or statutory scheme. ... However, submissions and supporting materials are generally not treated as constituting part of the mandated considerations." He observed that "little attention was paid to the need to distinguish between mandatory considerations and relevant supporting documentation" (at [73]).

96 The same criticism may be levelled in these proceedings. The Blakes advice was neither a mandatory consideration nor a prohibited consideration. It did no more than state that the material before Rous Water was adequate to satisfy s 111 of the EPAA. Likewise the Lindsay Taylor advice. It has not been demonstrated that, by reason of either advice, the Councils regarded themselves as improperly bound or that either Council failed to take into account to the fullest extent reasonably practicable the mandatory matters it was required to consider pursuant to the legislation.

97 On the contrary and as discussed above, Rous Water had been considering these issues since 2005. There had been extensive public consultation. The Council had commissioned the REF, which examined the environmental impacts of the approved and directed activity in detail. NDC, the consultants engaged by the Council, required further assurance on the environmental impacts and obtained such assurance from the Department of Health. The Council then adopted the REF, incorporating as it did the material from the Department of Health. It was only after this process, which culminated in the provision of the two legal advices, that the Council proceeded to make a decision because the material before it was sufficient for it to do so; not because, as Mr Oshlack submitted, the legal advices dictated the decision it should make.

The Marom Creek Decision

98 In addition to the application of the above reasoning and findings to the Marom Creek decision, it should be noted that, as particularised, insofar as this ground of review challenges that decision it is, as Ballina Council argues, misconceived. This is because the impugned decision concerned only the "construction of the proposed fluoridation plant". It was not a resolution to increase the fluoride levels in the relevant public water supply. A challenge based primarily on a failure to consider the impact of any uplift in the fluoridation of public water supplies on the environment therefore faces considerable obstacles on this basis alone.

99 In Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 (this aspect of the decision was not disturbed on appeal: Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 184 LGERA 104 at [47]-[48]), the local council approved a development to construct a school that also required the construction of a bridge over a creek running across the boundary of nearby land on a public reserve. It was held that the council's failure to additionally consider the impact of the construction of the bridge on the environment invalidated the consent (at [19]-[26] per Biscoe J).

100 In the present case, however, Ballina Council's resolution extends only to the point of the construction of the dosing plant. It does not extend to the approval to fluoridate its public water supply. Undoubtedly once constructed the plant will be used for the purpose for which it is built, but the activity of fluoridating the water requires an additional authorisation, and hence decision, to be made by the Council. Any attempt to impugn the Marom Creek decision on the basis that Ballina Council has failed to consider the impact of any uplift in fluoridation is, therefore, premature.

101 But, in any event, the REF and the Department of Health letter dated 15 February 2010 were both before the Council when it made its determination, and the Determination Authorities Report specifically stated that "consideration of the likely impacts generated by the proposal which are statutorily required to be addressed have now been met." There was, in my view, ample material before the Council to enable it to resolve to approve the construction of the proposed fluoride dosing plant at Marom Creek in compliance with s 111 of the EPAA and cl 228(2) of the EPA Regulations.

102 I therefore find that Rous Water and Ballina Council complied with s 111 of the EPA and cl 228(2) of the EPA Regulations. Accordingly, this ground of review must be dismissed.

Rous Water Neither Had Regard to an Irrelevant Consideration, Nor Made an Error of Law by Taking into Account the Legal Advice

103 It is convenient to deal with the second and third grounds of review together as they are essentially different formulations of the same complaint.

104 Mr Oshlack argues that Rous Water has made an error of law or, more specifically, taken into account an irrelevant consideration, namely, the Lindsay Taylor legal advice dated 16 April 2010.

105 The gravamen of these grounds of review is the purportedly erroneous nature of the advice insofar as it allegedly indicated to the Council that it had no alternative but to immediately implement the Secretary's direction and approvals and that any failure to do so could result in sanctions.

106 These grounds of challenge must fail because, in addition to the reasons given above, first, it has not been demonstrated that the advice was erroneous. Second, there is nothing in the statutory power being exercised by the Council prohibiting consideration of arguably incorrect legal advice (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-41 and Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 at [104]). Third, Mr Oshlack is not able to identify what further expert advice or material the Council would have sought prior to making its decision, and moreover, the effect that such information would have had on the Council's decision. And fourth, even assuming the advice was wrong, at its highest this would amount to an error of fact made by the Council, which is not reviewable.

107 Accordingly, these grounds of review must fail.

There was No Constructive Failure to Exercise Jurisdiction by Rous Water or Ballina Council

108 A constructive failure to exercise jurisdiction occasioned by taking into account an irrelevant consideration, or by Rous Water failing to apply itself to the task that s 111 of the EPAA mandates must be undertaken, is clearly an error going to jurisdiction (Ex parte Hebburn; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179, Coal and Allied Operations Pty Ltd v Australian Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [31] and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] and [95]).

109 In respect of Rous Water, just as the gravamen of this challenge is the same as grounds two and three, namely, the reliance on the Lindsay Taylor legal advice, so too must be the reasons for its rejection.

110 In relation to Ballina Council, the complaint is identical. The substance of the legal advice given to Rous Water was known to Ballina Council at the time the Marom Creek decision was made. Two members of Ballina Council were also councillors of Rous Water, both of whom were aware of the legal advice provided by Blakes and Linday Taylor.

111 Again Mr Oshlack is not able to demonstrate any misapprehension by Ballina Council as to the exercise by it of any power under Pt 5 of the EPAA. This is so notwithstanding that, as it misdescribed in its minutes of the meeting at which the decision was made, there was no direction given to the Council, only an approval.

112 It follows that, just as the challenge to the Rous Water decision based on this ground of review has failed, the challenge to the Marom Creek decision must equally be dismissed .

Conclusion

113 Because Mr Oshlack has been unsuccessful on all of his grounds of review, the summons must be dismissed.

114 I do not, therefore, need to consider any of the discretionary bases raised by the Councils precluding a grant of relief to Mr Oshlack.

Costs

115 Because these are proceedings in Class 4 of the Court's jurisdiction, costs would ordinarily follow the event.

116 At the hearing the parties requested that the Court reserve the question of costs, to which the Court agreed. Upon reflection, however, and in order to avoid any further time and financial expenditure in pursuit of this issue, the Court proposes that Mr Oshlack pay the first and second respondents' costs, but that if any party wants to seek an alternative costs order, that party is free to do so.

Orders

117 The formal orders of the Court are as follows:

(1) the summons is dismissed;

(2) the applicant is to pay the costs of the first and second respondent. However, if any party seeks an alternative costs order, then that party is to relist the matter within 14 days of the date of this judgment for further argument on the question of costs; and

(3) the exhibits are to be returned.

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Decision last updated: 16 May 2012