Image for A failure to acknowledge, let alone disclose

DPIPWE’s response to my Right to Information request (On TT, HERE) in regard to the issue of “substantial commencement” fails to disclose the existence of the legal advice received by the EPA in 2009 which led to the introduction of the Pulp Mill Assessment Amendment (Clarification) Act 2009 [1].

I can only conclude that the reason for DPIPWE failing to acknowledge, let alone disclose, the advice is that it supports the case that the Pulp Mill Permit [2] has lapsed and Gunns’ authority to build and operate the pulp mill is extinguished.

“I wish to inform you that there has not been any such legal advice obtained by the EPA.” – Bobbie O’Brien, RTI Co-ordinator, DPIPWE, 16 September 2011.

“On 20 October 2009 the Director, Environment Protection Authority, Mr Warren Jones (Director, EPA), wrote to the Secretary of the Department of Primary Industries, Parks, Water and Environment advising that, on the basis of advice that he had received from the Solicitor-General, uncertainty has arisen.” - Pulp Mill Assessment Amendment (Clarification) Bill Fact Sheet 2009 [3]. (On TT HERE: It was not self-evident to me that the works that Gunns had undertaken ...)

I have reproduced the entire text of the Fact Sheet at the end of this comment as it is extremely illuminating.

In addition to the above, the EPA has acknowledged that Gunns’ permits to undertake dam works (as detailed in WM2,WM3 and WM4 [4] of Schedule B of Appendix 2 to the Pulp Mill Permit) lapsed on 30 August 2011 as the dam works were not substantially completed within 4 years (i.e.30 August 2011) of the Pulp Mill Permit coming into force – see Section 8 (5) (b) of the Pulp Mill Assessment Act and Section 4 of the Pulp Mill Assessment Amendment (Clarification) Act 2009.

The permits cannot be extended as this is precluded under the terms of Section 159 of the Water Management Act 1999 [5] which states that “An application for an extension under subsection (9) must be – (a) in accordance with section 12A; and (b) made no later than one month before the permit is due to lapse.” (i.e. no later than 30 July 2011).

The dam works are an integral part of the construction activities incorporated within the Pulp Mill Permit and Gunns’ failure to comply with the conditions of the Pulp Mill Permit requiring valid permits for the works triggers Sections 8 (2) and (3) of the Pulp Mill Assessment Act [6] andsuspends the Pulp Mill Permit with permanent effect.

DPIPWE has also confirmed that Gunns’ applications for a Permit to Undertake Dam Works at Bell Bay published in the Examiner on 10 September [7] are in respect of WM4 of the Pulp Mill Permit - miscellaneous stormwater storage dams and treatment pond.

As previously noted, this permit lapsed on 30 August 2011 and an application for an extension was not made within the necessary timescale prescribed within Section 159 of the Water Management Act 1999. Gunns’ authority to undertake the dam works previously authorised by this permit is therefore extinguished and cannot be resurrected by a new application.

Any construction works carried out on site after 30 August 2011 currently fail to comply with the conditions of the Pulp Mill Permit and are consequently prohibited by Clause 2.5.1 of the George Town Planning Scheme 1991 [8].

Breach of the Scheme is a criminal offence under the terms of Section 63 of the Land Use Planning and Approvals Act 1993[9] and the works must therefore be stopped by the appropriate regulatory authority as a matter of urgency.

The Attorney General can resolve the issues by referring them to the Supreme Court for determination but has refused to intervene on the basis that he does “not believe that the public want to see politicians meddling in that process.”

This is a complete abrogation of Ministerial responsibility and his reasoning totally contradicts the fact that the Pulp Mill was removed from the independent RPDC assessment process and approved by Parliament via a fast tracked, truncated and entirely political process.

Other significant failures to meet the conditions of the Pulp Mill Permit include the requirement under Clause 2GN 12.1 of Schedule LU1 -Land Use and Development Permit – Pulp mill and associated infrastructure (George Town) [11] – to establish a Public Complaint ResponseProtocol which must include, but is not limited to, a 24 hour public complaints telephonehotline and a public communications process in relation to the hotline.

I have referenced the relevant pieces of legislation at the end of this comment.

Pulp Mill Assessment Amendment (Clarification) Bill 2009 FACT SHEET

“The purpose of the Pulp Mill Assessment Amendment (Clarification) Bill 2009 is to establish a date of expiry for the Pulp Mill Permit. It provides certainty about the date on which the Pulp Mill Permit lapses, should Gunns Limited have failed to substantially commence the development and operation of a bleached kraft pulp mill in Northern Tasmania.

On 30 April 2007, the Pulp Mill Assessment Act 2007 received Royal Assent.
The Act established a standalone process for the assessment of the proposal by Gunns Limited for the development and operation of a pulp mill in Northern Tasmania, resulting in the Pulp Mill Permit being prepared by the Minister for Planning.

On 30 August 2007 the Pulp Mill Permit was approved by both Houses of Parliament and came into effect.

At the time of passing the Act it was not considered necessary for the Pulp Mill Assessment Act to contain a date at which the Permit would cease to exist, had the project not substantially commenced.

Nor was it considered necessary to specifically address provisions relating to the expiration of permits, licences or other approvals, contained in other Acts that may apply to the Pulp Mill Permit.

On 20 October 2009 the Director, Environment Protection Authority, Mr Warren Jones (Director, EPA), wrote to the Secretary of the Department of Primary Industries, Parks, Water and Environment advising that, on the basis of advice that he had received from the Solicitor-General, uncertainty has arisen.

The uncertainty arose as a result of the potential expiry of Schedules LU1, LU2, LU3 and LU4 of Appendix 2A to the Pulp Mill Permit, which are taken to have been issued under the Land Use Planning and Approvals Act 1993 (LUPAA).

Under section 53(5) of LUPAA a permit expires two years after it was issued unless:
• the relevant planning authority has granted an extension of the permit; or
• there has been substantial commencement of the activity.

There are differing legal views about the application of section 53(5) of LUPAA to schedules LU1-LU4 of the Pulp Mill Permit.

If section 53(5) of LUPAA is taken to apply, there is also some doubt as to whether Gunns has ‘substantially commenced’ the use or development in respect of which the permit was issued, being the pulp mill, when the term ‘substantially commenced’ is given its strict legal construction in the context of that Act. This is despite the fact that the proponent has spent considerable sums of money related to satisfying permit conditions and preparing for development.

The lapsing of the Permit is, therefore, a matter that can only be conclusively resolved by a court or by legislation.

Without such a determination being made by a court, or legislation being passed by both Houses of Parliament, the Director of the EPA and all other regulators will remain uncertain of the status of the Pulp Mill Permit.

The consequence of the Director of the EPA’s advice to Government is that there is now doubt over the current status of the Pulp Mill Permit that needs to be resolved.

The proposed Pulp Mill Assessment Amendment (Clarification) Bill 2009 provides that the entire Pulp Mill Permit lapses if the project is not substantially commenced before the end of the period of four years from the Pulp Mill Permit coming into force (that is by 30 August 2011).

The Bill also sets aside the operation of provisions relating to lapsing of Pulp Mill Permit conditions contained in section 53(5) of the LUPAA and section 159(8) of the Water Management Act 1999 and deems permits that may have lapsed under those Acts not to have lapsed. This ensures that it is only the new date of lapsing, imposed by this Bill, being four years from its approval, that applies to the Pulp Mill Permit.

The amendment to the Pulp Mill Assessment Act means that regulators can be certain that, should Gunns not have substantially commenced the project by 30 August 2011, the Pulp Mill Permit lapses and Gunns’ authority to build and operate the pulp mill is extinguished.

Four years is considered a reasonable period of time given the size and considerable complexity of the project and lapsing provisions in other legislation.

Provisions contained in LUPAA, if found to apply, would allow up to four years for the use or development to have substantially commenced for a permit to remain on foot, whilst theWater Management Act allows up to years for a dam to be substantially completed for the permit to remain on foot.

In providing a single date at which the Pulp Mill Permit lapses, should the pulp mill project not have substantially commenced, the Pulp Mill Assessment Amendment Bill provides the certainty sought by the Director of the EPA.”

References

[1] Pulp Mill Assessment Amendment (Clarification) Act 2009 http://www.austlii.edu.au/au/legis/tas/num_act/pmaaa200965o2009481/index.html#s4

[2] Pulp Mill Permithttp://www.justice.tas.gov.au/justice/pulpmillassessment/pulp_mill_permit

[3] Pulp Mill Assessment Amendment (Clarification) Bill Fact Sheet 2009http://www.parliament.tas.gov.au/bills/Bills2009/pdf/notes/102_of_2009-Fact%20Sheet.pdf

[4] Schedules WM1-4http://www.justice.tas.gov.au/__data/assets/pdf_file/0004/84307/DPIW-B.pdf

[5] Water Management Act 1999 – Sect 159 http://www.austlii.edu.au/au/legis/tas/consol_act/wma1999166/s159.html

[6] Pulp Mill Assessment Act 2007 – Sect 8 http://www.austlii.edu.au/au/legis/tas/consol_act/pmaa2007248/s8.html

[7] Gunns’ applications for a Permit to Undertake Dam Works at Bell Bay http://tasmaniantimes.com/index.php?/weblog/article/gunns-ad/

[8] George Town Planning Scheme 1991 http://www.georgetown.tas.gov.au/webdata/resources/files/Planning_Scheme.pdf

[9] Land Use Planning and Approvals Act 1993 – Sect 63 http://www.austlii.edu.au/au/legis/tas/consol_act/lupaaa1993296/s63.html

[10] Brian Wightman MP Attorney-General Media Release Wednesday, 31 August 2011
http://www.media.tas.gov.au/release.php?id=33096

[11] Schedule LU1 - Land Use and Development Permit – Pulp mill and associated infrastructure (George Town) – see Pages 54 and 55 http://www.justice.tas.gov.au/__data/assets/pdf_file/0019/84421/LU1_-_George_Town2.pdf