THE ENVIRONMENTAL IMPACT POLICY OF THE NEW SOUTH WALES GOVERNMENT AND ITS EFFECT AT LOCAL GOVERNMENT
MICHAEL F. WATERHOUSE BE MEngSc NSW, MIEAust. This thesis is,submitted to the University of New South Wales to coq>lete the requirements of the course in Master of Applied Science.
DECEMBER. 1973.
The contents of this thesis are submitted to the University of New South Wales for the award of Master of Applied Science and have neither been submitted. nor is intended to be submitted, to any other University or Institution for an award or degree. TABLE OF CONTENTS
ACKNOWLEDGEMENTS SYNOPSIS FOREWORD THE ENVIRONMENTAL IMPACT POLICY OF THE NEW SOUTH WALES GOVERNMENT AND ITS EFFECT AT LOCAL GOVERNMENT 1. ENVIRONMENTAL IMPACT POLICY 1. 01 · How it all Began in New South Wales 1.02 Statement of Principles 1.03 The American Environmental System 1.04 Discussions Comparing New South Wales and American Environmental Systems 2. THE ENVIRONMENTAL IMPACT 2.01 The Environmental Impact in New South Wales 2.02 American Environmental Impact Statements 2.03 Discussions of Environmental Impact Statements 3. SOME FEATURES OF LOCAL GOVERNMENT r3.Ql Uniq'ue Features and Environmental Consequences 3.02 Required Personnel and Finances 3.03 Clarification of Procedures 4. CONSIDERATIONS AND RECOMMENDATIONS FOR IMPLIMENTATION OF .. ENVIRONMENTAL IMPACT IN NEW SOUTH WALES . 4 .01 Should Environmental Impact Policy Continue? 4.02 An Envjronmental Objectives Act 4.03 Existing Environment Data Collection Method 4.04 Justification of a Change.of Existing Uses 4.05 Comments from Outside Bodies 4.06 Onus no Longer on the Decision-Making Authority 4.07 Ensuring Decision is Carried Out 4.08 Appeals 4.09 Leg~lity 5. ADDENDUM/NEW GUIDELINES 5.01 Onus Change 5.02 Not all Elements Considered 5.03 Discussion of Outside Comments 5.04 Declaration of Environmental Factors 5.05 Is the Government Serious About the Environment? 5.06 Background 5.07 State Pollution Control Conmission Restricted 5.08 Pollution Control or Environmental Quality Control? APPENDICES 6. ENVIRONMENTAL IMPACT POLICY STATEMENT OF PRINCIPLES 7. STATUTORY AUTHORITIES OF NEW SOUTH WALES 7.01 Process of Government 7.02 Complexity 7.03 Statutory Corporations 7.04 Financial Control 7.05 Administrative Tribunals 7.06 The Frank's Co1T111ittee 7.07 Procedure After Hearing 7.08 To Conclude 8, ALPHABETICAL LIST OF STATUTORY BODIES OF NEW SOUTH WALES AT SEPTEMBER 1972 . 9. LOCAL GOVERNMENT - A STATUTORY AUTHORITY 9. 01 Management 9.02 Elections and Council Structures 9.03 Power 9.04 Appeal 9.05 Health 9.06 Public Works 10, STATE POLLUTION CONTROL COMMISSION ACT 10. 01 Origin and Administration 10.02 State Pollution Control Commission Act, No.95, 1970. 10.03 Environmental Impact Policy and State Pollution Control Commi s sion Act 11. ADMINISTRATIVE AUTHORITIES FOR THE ENVIRONMENTAL LEGISLATION OF NEW SOUTH WALES 11 .01 Pollution Control Measures in General 11.02 Air Pollution 11.03 Water Pollution 11.04 Waste Disposal 11.05 Noise Pollution 11.06 Noxious Trades 11.07 Pollution By Radioactivity 11.08 Agriculture 11.09 Conservation of Nature 11.10 Pollution of Soil 11.11 Visual Pollution 11. 12 Others BIBLIOGRAPHY ACKNOWLEDGEMENTS
I wish to acknowledge ff\Y appreciation for the assistance given by the following persons:
PROFESSOR J. S. RATCLIFFE, PROFESSOR CHEMICAL ENGINEERING - SUPERVISOR: His guidance on studies and issues of Environmental Impact has asfisted R\Y comprehension of the Policy and the complex government machinery requi°red for its impl imentation.
MR. J. F. POLLARD, LLM Syd. and MR. A. G. WILLIAMS - ENVIRONMENTAL
IMPACT REPORTS PTY. LTD. : The assistance given by the personnel of this Company contributed to the depth of this. study. The full under standing of the Environmental Impact Policy and its ~amifications along with a thorough comprehension of· Local Government and Environmental Law by these people contributed to 11\Y better understanding of these areas in a short time as well as providing practical examples where problems have already arisen.
MRS. M. WATERHOUSE and M/s L. & E. CARTER - MANUSCRIPT TYPISTS:
Appreciation is expressed to 11\Y mother for her efforts in typing several drafts and to Shane and Betty Carter for their efforts in producing such a presentable manuscript.
LOCAL GOVERNMENT PERSONNEL: The Local Government Personnel of various areas have been generous with both time and information in providing back ground for 11\Y understanding of the ~nvolvements of Local Government. Particular mention is made of the following councils for their assistance in January 1973 during my tour throughout South Western and Western New South Wales - DUBBO CITY COUNCIL, DUBBO. PARKES MUNICIPAL COUNCIL, PARKES. BATHURST CITY COUNCIL, BATHURST. ALBURY CITY COUNCIL, ALBURY . . BROKEN HILL CITY COUNCIL, BROKEN HILL. CENTRAL DARLING SHIRE, WILCANNIA. COBAR SHIRE COUNCIL, COBAR. SYNOPSIS
Environmental Impact Policy of the New South Wales Government is studied, after an understanding of the problems of Local Government and compared with a similar procedure in the United States of America.
The study brings to light many problems that need to be solved before the Policy can _be fully effective while expressing the feeling that the American procedure appears to be superior in many· ·aspects particularly in its statutory backup.
Besides the Environmental Impact Policy the State Pollution Control Commission Act was also studied at some length, because of its overriding environmental jurisdiction to determine the full powers of this body and its ability to enforce the Env~ronmental Impact Policy.
Many of the reconvnendations and conclusions drawn, while directly applicable to the Local Government can be.broadly applied to all government levels.
c;. :. c. I:' V - • C.- FOREWORD
On January 28, 1971, the New South Wales Government introduced its Environmental Impact Policy aimed to predict the environmental effect of a proposed action prior to that action's approval. These predictions were intended to be complimentary to the existing material used to decide on the application for approval of the proposed action. The meaning of the word "Environment" used in this text is defined as: ALL CONDITIONS, CIRCUMSTANCES ETC. CONCERNING AND AFFECTING THE DEVELOPMENT OF MAN. This thesis is aimed to investigate the progress of the policy from its inception paying particular attention to the Local Government area. However, being a young policy, the full effects have not developed. Consequently this study has resulted from a comprehensiGn of the Local Government situation and the application of this understanding to the application of Environmental Impact. In New South Wales there are 225 Local Government areas and ·go% of all Development Applications are handled by this group. Since the Environmental Impact Policy originated at the senior level of Government while its application is at Local Government (having had little consultation prior to the policy's announcement) many problems were expected to arise. This thesis has attempted to study, define and discuss these problems and in light of similar American experiences discuss the comparison of the two procedures. It is recognised that the legal system between these two countries is different. However, overlooking these differences, basic principles were recognised and fundamental conclusions drawn. Although it is recognised that some recommendations may be regarded as a little academic and ideal for the Policy's application in the New South Wales Government system, it is felt by the author that if the ultimate objectives are not aimed for then the full potential of the Policy will never likely be reached. If nothing more, the outcome of the study should be a fundamental aim of the Environmental Impact Policy to allow public scrutiny of most major government decisions prior to final approval •
< u • < C" • C- G. •• c.
e 1. ENVIRONMENTAL IMPACT POLICY 1.01 How It All Began in New South Wales On January 28, 1971, the Premier of New South Wales, 4 in his policy speech opening the election campaign for the liberal Party, made first reference to the establishment of a new Mini st.ry under the Section of Pollution.
"On top of all this action we will appoint a
fulltime Minister for Environmental Control.
Other Ministers whose departments deal with
some facet of pollution will be required to
give the new Minister every co-operation.
We have had such spectacular success with a full time Minister for decentralisation. that we believe a problem as serious as pollution
needs a fulltime Minister answerable only
to the Premier."· Following this statement, on May 13, 1971, the Liberal Party having been returned to government, the first Minister for Environment Control in the State of New South Wales was commissioned, and the State Pollution Control Commission Act, 1970 placed under that .Minister's administration. To assist the Minister the Government approved the establishment of the Department of Environment in addition to the State Pollution Control Commission·having personnel ·of technical expertise. The first publication~ released on May 6, 1971, by the New South Wales Department of Environment under the authority of the Minister, was a preliminary report on improvements of the environment. This surveyed the present state of the environment in New South Wales and throughout Australia. It aimed to examine the present status in New South Wales of 2. C " .• C. environmental problems, and broadly outlined the Government's involvement with the management of pollution ·in the areas of air, land, landscape, fresh water, ocean water, beaches, (" pollution by radioactive wastes, and noise. Following on from this initial publication, in September, 1971, the State Pollution Control Commission (S.P.C.C_.), using the staff and funds of the Department 7 of Environment, conducted a preliminary survey of pollution production, waste disposal and air and water pollution. Seeking information from the 225 Shire, City and Municipal Councils of New South Wales the S.P.C.C. aimed to determine priorities for action from the information received. On January 19, 1972, the Premier, having received advice from the Minister for Environment Control, and with Cabinet's approval, declared the New South Wales State Government's Policy of "Environmental Impact" with the . 8 following announcement:
"The Government recognises that an increasingly
urgent responsibility rests upon the whole
community to preserve the quality of our
environment and maintain conditions under
which man and nature can exist in productive
harmony. From industrial and commercial
organisations, public departments and
educational institutions, on the one-hand,
down to people on the job in the course of
their day-to-day activities on the other,
there is a need for greater awareness of the
impact of our actions upon the environment. 3.
It is Government policy to promote and
maintain this awareness. It is also
Government policy that, before any
action which could significantly affect
the quality of the environment is
undertaken, its implications shall be
expressly identified and evaluated." This statement by the Premier highlighted the intended objective of this new policy as to the PROMOTION and MAINTENANCE of the AWARENESS of the IMPACT of MAN'S action on the environment and for actions where the quality of the environment is affected, their implications are expressly identified and evaluated prior to their commitment; this procedure being aimed at preserving the quality of our environment while maintaining conditions under which man and nature can exist in productive harmony.
1.02 Statement of Principles During the same period, after the Premier's statement, 9 the Minister for Environment Control issued a "Statement of
Principles adopted by the N.s.w. State Government for
Environmental Impact Policy" (See Appendix). This Statement of Principles outlined the approach to be taken by the Government to combat pollution and consisted basically of - .
(a) Clearing up the existing pollution and pollution producers by strengthening the powers and responsibilities of individual Ministers and Authorities to control pollution and prevent 4.
degradation of the environment by the application of the State Pollution Control Co11111ission Act, 1970.
The State Pollution Control Commission, which has the 33 task of ensuring through its own Act or any other Act that all practical measures are taken to: control pollution; control the disposal of waste; protect the environment from harm; and co~ordinate such activities by other authorities. This is the traditional method of Government administration for ensuring measures are met, and to carry out the above task the Commission has the responsibility to set standards, or ensure that adequate standards are set and applied. However, the Commission is to use reviews of "Environmental Impacts" to determine the adequacy of safeguards and controls.
(b) To prevent pollution and to avoid the introduction of any new pollution producers by requiring the adequate planning of projects to include adequate safeguards and the proposed project's impact on · the environment.
This procedure has been titled "Environmental Impact". This new and revolutionary approach of Environmental Impact was the result of the Government's knowledge of and investigation into a somewhat similar approach taken by the United States of America's Federal Government in January, 1970. For major projects the Statement of Principles outlines what is required in an Environmental Impact consisting of: 5.
(i) A survey of the characteristics and conditions ' of the existing environment of the area for the intended project prior to implementing the project. (ii) A statement of the project's major objectives. (iii) An analysis of the technological possibilities of achieving the objectives. (iv) A statement of the alternative plans, considered practical, to achieve the objectives. (v) A separate report on each alternative considered, containing an analysis of costs and benefits. (vi) An assessment for each alternative of its probable impact on the existing environment; and (vii) A summary recommending a particular plan and its resulting environmental consequences, including the rationale supporting the selected plan.
For actions of lesser or minor environmental significance the full requirements listed above are not necessary; however, the philosophy embodied in such is required and must operate
(" • C ._ •• C, throughout all levels of Government. The responsibility for ensuring the necessary study to determine environmental impact is undertaken js that of the decision-making authority, and the environmental impact study will be utifised by that decision-making authority - in conjunction with·economics and other studies to decide approval for the project, and - to determine environmental safeguards required for the project. 6.
Any disputes between Government departments on controversial projects, on environmental grounds, would be decided by the S.P.C.C. and if any dissatisfaction arises from the S.P.C.C.'s ruling then the Premier has been designated the duty of making the final ruling, the Environmental Impact being used at all the above stages to arrive at decisions. Decision-making Authority as expressed in this Principle Statement refers to any Statutory Authority constituted under New South Wales Law and so refers only to State bodies. Hence all the State Statutory Authorities should be obligated to the stated environmental policy of the Government, but no statutory requirement has been created to bind these Government bodies to such policy.
10 1.03 The American Environmental System Since the New South Wales Environmental Impact Policy was adopted following the introduction of legislation and similar procedures by the same name in the United States of America approximately two (2) years prior to its introduction in New South Wales, and since New South Wales has relied heavily upon American recommendations and approaches to this particular aspect of environmental protection, it is worth devoting some time in analysing the general concepts and background of the American system. A Bill was introduced in the House of Representatives in the Federal Government of the United States of America on February 17, 1969,
"to provide for the establishment of a
Council on Environmental Quality" which was later amended to proclaim their primary purpose 7.
"TO ESTABLISH A NATIONAL POLICY FOR THE
ENVIRONMENT". The resulting National Environmental Policy Act (N.E.P.A.) was signed into law by the President on January 1, 1970, and became the basic policy setti~g Federal law relating to the protection of the environment. During the consideration of the Bills which led to N.E.P.A. the Santa Barbara channel oil spill, an oil blow-out, which occurred in early 1969 from off-shore wells operating under Interior Department leases, was repeatedly referred to as an example where Government assurance had been more thorough than its precautions, and with this example many witnesses repeatedly referring to this disaster requested a. national environmental policy that was not just a mere utterance of an intention, but more a guarantee that federal agencies would instigate the new policy. What was sought was a Statute which embodied some means of guaranteeing that federal agencies would heed the new policy. Congress' response to this need was the provision that became Section 102 of N.E.P.A. - a provision without a close statutory precedent. The Section directs all Federal agencies to interpret and administer their authorities in concert with the new environmental policy. Subsection 102(2)(c) required all Federal agencies to prepare for all
"MAJOR FEDERAL ACTIONS SIGNIFICANTLY
AFFECTING THE QUALITY OF THE HUMAN
ENVIRONMENT" a detailed statement of what the environmental impact will be. 8. < (' <. •• C,
This environmental impact statement process of Section 102(1)(c) requires a public explanation of the environmental consequences of proposed Government actions, which was a r substantial adjustment to the past, and specifies that environmental impact statements must cover five (5) points: (i) the environmental impact of the proposed action;. (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented; (iii) alternatives to the proposed action; (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. With Section 102(2)(c) requirement of an environmental impact statement for "major Federal actions significantly affecting the quality of the human environment" "major" and "significant" are relative, calling for a reasonable exercise of judgement in light of the N.E.P.A. policy. Because the Section 102(2)(c) requirement is addressed to the agency proposing to take action, it is that agency which must initially decide the applicability of the terms in light of its knowledge of the nature and effects of its programme. Therefore, in practice, an agency contemplating any action that may possibly affect the environment must perform an environmental assessment and decide whether a statement is necessary. In an attempt to speed up decisions some Government agencies have experimented with the practice of issuing a 9.
notice of intent when a preliminary investigation indicates that an Environmental Impact statement is required. This notice alerts the public that a statement is forthcoming, offering an opportunity for early comment. Similarly agencies may make a NEGATIVE declaration when it is decided that a statement is not necessary, thus airing their decision for public scrutiny. Besides the above, N.E.P.A. Section 102(2)(c) was a directive that agencies develop methods for giving
"presently unquantified environmental
amenities and value ••• appropriate consideration
in decision making along with economic and
technical consideration", which is part of the intended aim of use of environmental Impact process. Although much of the public discussion of N.E.P.A. revolved around the environmental impact 'statement procedures of Section 102(2)(c), the primary purpose of Congress in enacting N.E.P.A. was to establish a Federal policy in favour of protecting and restoring the environment. The actual impact of N.E.P.A. policy on Government decisions has already been seen - some projects having been ,. modified or abandoned when their environmental effects would have been unacceptable~
It has been pointed out that N.E.P.A. 1 s substantive duties would be best implemented in cases of multiplicity of individual actions administered under relatively uniform policies, by writing environmental policies into the general rules governing a programme. Similarly, the procedural duties of Section 102(2)(c) would be more effectively implemented by 10. preparing a single statement on the programne as a whole rather than by filing separate environmental impact statements on individual actions. A Council on Environmental Quality was constituted in the N.E.P.A. Act which would act in an advisory capacity to the Government recommending procedures or changes in procedures to implement the aim of the Act • . It was this Council's goal to make the 102 process self-implementing so that environmental factors receive proper attention without frequent Council or Court intervention. Public participation plays a vital role in realising this goal by sounding an alert when an agency has failed to consider important environmental effects. Citizen enforcement of N.~.P.A. through court action is one of the main forces in making the Act's intended reform a reality. Court actions have resulted in some far-reaching effects of what is involved. In Court actions plaintiffs have argued some environmental Impact statement failed to discuss the views of experts who disagreed with opinions of scientists expressed in the statement. This resulted that
"only responsible opposing views need be
included" to produce
"a meaningful reference that identifies
the problem at hand for the responsible
official". 11.
The initiating agency should consider all major schools of thought to enable that agency to re-evaluate the project in the light of conments and opinions of which they are unaware, and discuss them in the environmental Impact process. The Court has also declared that
"it is the essence and thrust of N.E.P.A.
that the pertinent statement serve to
gather in one place a discussion of the
relative environmental impact of
al terna ti ves" - which include all the alternatives reasonably available not just to the agency but to the Government. If some of the alternatives are outside the authority of the agency preparing the statement,·their discussion would inform the public on the issues and guide the future choices of the ultimate decision makers in Federal Government. In deciding whether a 102_ statement is required for a proposed action, an agency must interpret the statutory phrase
"major Federal actions significantly affecting the
quality of the human environment". The assessment of environmental effects is largely a question of fact; the interpretation of the statutory phrase is a question of law. With this latter point in mind several industries . challenged Environmental Protection Agency regulations limiting air pollution emissions from new industrial plants arguing that regulations are major Federal actions that significantly affect the environment, gaining t~e decision that such is the case, thus broadening what is meant by "Actions". 12.
For example, a company argued that strict control on one kind of pollution, such as ocean dumping, would force some other means of waste disposal leading to further pollution of the air or inland waters instead. Two and a half years after its introduction the Council on Environmental Quality came to the following conclusions of N.E.P.A.'s accomplishments:
~ u • C C- ... l• It was a major step in bringing national policies into line with modern concerns for the quality of life. 2. The envi ronmenta 1 Impact process· provided a systematic way for the Government to deal with complex problems that cut across responsibilities of several agencies. 3. The environmental Impact had opened a broad range of Federal Government activities to public scrutiny and participation for the first time. 4. Agencies were now being required to supplement their staffs with persons of different backgrounds relevant to environmental issues. · 5. N.E.P.A.'s initiatives being enforceable in Federal court by citizen suit kept each of the requirements from being an empty exhortation.
What N.E.P.A. requires of an agency was often difficult and uncomfortable. IT IS ONLY NATURAL THAT AGENCIES ARE SOMETIMES RELUCTANT TO QUESTION ACCEPTED GOALS AND TO DO THE WORK DEMANDED BY THE ENVIRONMENTAL IMPACT PROCESS. The benefits of N.E.P.A. procedures to ensure that measures to protect the environment are actually carried out 13. have not been_without cost to the U.S. Government and private business. The need to study environmental effects and to hire new personnel is estimated to cost $65 million per annum when N.E.P.A. is fully under way. However, larger amounts would have been wasted. On advice of the Council on Environmental Quality, the President ordered a halt in construction of a partially completed barge canal across Northern Florida that threatened important natural values. The work when stopped had cost $50 million, but would have cost $130 million more to complete. U.S. States have also felt N.E.P.A.'s impact. States that apply for Federal funding for projects such as highways, airports and sewage treatment plants, must anticipate the scrutiny their proposals will receive from Federal agencies, and as a result, are gathering more information on the environmental issues surrounding these projects. After two and a half years in operation at the end of May, 1972, the Council on Environmental Quality operating as a clearing house of environmental Impact Documents had handled a total of 2,933, 60% of which involved transport projects, while a further 15% involved constructions and the Corps. of Engineers. The breakup was as follows: 1,436 roads {including 201 roads through parks.) 403 watershed protection and flood control 22 airports 186 navigation 150 electric power 66 parks, wildlife refuges and recreational facilities 14.
44 land acquisition and disposal 32 pesticides and herbicides 396 others.
Filing of final and draft combined = 10 each working day
Draft (represents new proposals) = average 4 - 5 per day, while in the two and a half years fewer than 800 statements have been· prepared for all categories of Federal actions other than highways, airports and Corps. activities.
1.04 Discussions With Comparison of the New South Wales Government's Environmental Impact Policy and the 0nited States of America's Federal National · Environmental Policy Act Incorporating the Environmental Impact Process 1.04.1 Definitions The~American application of Environmental Impact procedure is to ensure that the National- environmental goals--are adhered to and that no action of the Government is detrimental to those aims. It is of significance that in an attempt to clarify "major Federal actions significantly affecting the quality of the human environment" some States have attempted to give more meaning to this phrase by defining some of the words. The 1 9 State of California released interim guidelines for the preparation and evaluation of environmental impact statements under the Californian Environmental Quality Act of 1970. It is stated in these guidelines what constitutes a significant effect on the environment and hence would require an environmental impact. Very little is mentioned of pollution, implying that the environmental boundary of the Act is far wider than just pollution control. 15.
A significant effect on the environment encompasses -
" (1) Adverse and beneficial effects;
(2) includes environmental consequences of both
primary and secondary nature, and
(3) may include the following:
(a) disrupt or alter the appearance
of surroundings of an historic
or archaeological_ site;
(b) significant effect on natural ecological,
cultural, scenic resources of National,
State or local significance;
(c) lead to controversy regarding the
relocation of housing resources;
(d) disrupts or divides an established
community, or disrupts the orderly
planned development, or is
inconsistent with the plans and'
goals that have been adopted by the
community in which the project is
located or causes increased
congestion;
(e) results in inconsistency with any
National, State or local standard
relating to the environment;
(f) effects a rare or endangered species
of animal or habitat of such species." Also included is the definition of what "Action" is meant in the Environmental Quality Act.
"An action includes but is not limited to the .following: 16.
construction grants and relative activities
such as -
loans,
contracts,
purchases,
leases,
research and development involving
construction,
RULE MAKING AND REGULATION ACTION,
certification
licensing, and
permits.
Exceptions include normal administrative
purchase of supplies, personnel related
actions and administrative actions
related to projects which require an
environmental impact report".
1.04.2 Available to Public In America it is the intent of environmental impact to provide the public with the material used to arrive at a decision so that an outside party (the public} can re-examine the material to ensure that the right decision has been made in the light of the National and State goals set out by their Government's environmental Protection Act.
1.04.3 Goals The New South Wales Government have yet to set environmental goals and have not specifically given the real objective of Environmental Impact Policy except perhaps that 17.
in Premier Askin's introduction of_ the policy to further public awareness of the impact of actions on the environment along with preventing pollution. Certainly since the introduction of the New South Wales Statement of Principles followed by draft guidelines to assessment of environmental Impact Policy 12 months later the New South Wales Government have only
spoken of "major projects 11 • These major projects are industrial developments judged such by their effect on the environment. But since no agreed "benchmark" has been set as to what is the acceptable environmental quality to be achieved it is difficult to determine the magnitude of an effect on the environment. Thus it is more difficult to argue what constitutes· a significant effect on the environment to create a "major project".
1.04.4 Projects, Developments and/or Actions? Environmental Impact Policy of New South Wales has 12 concerned itself with "projects" although in draft guidelines "actions" and "developments" have been mentioned. The terms "projects, actions and developments" have not been fully defined. Some attempt has been made to define these terms to a degree in the guidelines, but all definitions related only to product producing industry again implying an interest only in pollution control. Thus since the Premier's introductory remarks referring to "our actions upon the environment" a change appears to have occurred such that now the concern is of "projects" and the control of their pollution. 18 •
. 1.04.5 Encouraging Public Participation The American system of encouraging the public to contest decisions on environmental Impact in the Courts as a means of providing a self-propulsion element and an incentive for more thorough investigations prior to making a
C • • C decision has relied heavily on making documents available to the public. New South Wales has not the same legal structure as the United States of America where any member or group of the publit can combat a decision through the courts, thus this self-propulsion element.is lacking along with the statutory requirement of an environmental impact procedure. It is significant to note that the initial Statement of Principles did not state that members of the public could have access to documents so as to re-assess the decisions made. However, a later alteration to the.Statement of Principles, following the State Pollution Control Commission's involvement in some public hearings on environmental issues, conceded that the "environmental impact statements will be made available for public inspection". It would appear from this that the initial thoughts of the New South Wales Government were not towards permitting public scrutiny of decisions, but that the Government would operate on behalf of the public. 19.
2. THE ENVIRONMENTAL IMPACT 2.01 The Environmental Impact in New South Wales 2.01.1 Draft GuidelineJ2 Following on from the Statement of Principles of the New South Wales Government Environmental Impact Policy introducing the new parameter in the decision-making process · of considering on equal terms with other technical and economic factors the environmental impact of proposed actions, a preliminary procedure for environmental impact was proposed by the Minister for Environment Control. In January, 1973, a draft manual for assessment of environmental impact in New South Wales was issued under the authority of the Minister for Environment Control with the aim of determining a process of environmental assessment with a proposal of a particular procedure to base discussions for its refinement and encourage decision-making authorities to immediately implement the policy of environmental impact. This manual, besides being a draft, did not oblige State Government authorities to carry out environmental impact assessments. The draft, however, has been studied. Since it was released by the Minister it is assumed to contain the thinking towards the methods and requiremen~s of the State Government to enactment of the process of environmental impact.
2.01.2 Objectives The objectives of the draft guidelines manual for the environmental impact policy were to ensure - {i} that the potential environmental impact of a project is investigated; and 20. ,: c..- - < (' C· • - G
{ii) that alternative actions are explored and evaluated in order to avoid or minimise undesirable consequences to the environment, both natural and human. These two items are to be used by the decision-making authority prior to granting approval for a proposal to satisfy thems~lves that adequate safeguards have been incorporated to maintain, restore or enhance the environmental quality to the fullest practical extent. For this to occur·an environmental Investigation should be undertaken at the concept stage of any project to produce - {i) a statement of the proposal's objective in· what is hoped to be achieved; · {ii) the effects that that proposed achievement of objective could have on the environment; {iii) the intended methods of achieving the proposed objective; and {iv) an investigation into the effect of all possible methods of obtaining the objectives on the environment. Besides the above, the alternative of taking no action should be investigated so as to provide data towards assisting the assessment of the justification to change the existing status on environmental grounds. The boundaries of environment influence of the project, as defined by the draft manual, are ~hose points where environmental effects no longer occur. Undertaking such an Environmental Investigation first requires an .environmental survey to determine the existing environment. 21.
Once having defined the proposed objective to be achieved it should be investigated to determine the environmental effects generally related to the existing environment as determined in the earlier survey. Having obtained this information then allows the continuation to the proposed methods of obtaining objectives, to determine their environmental effect generally, while investigating their interaction with the specific environment of the proposed area, again using the survey data.
2.01.3 Advantages If Impact Applied These three stages if undertaken in the concept stage of a proposal (as intended at its introduction) would be used for devising measures and methods to minimise or avoid adverse environmental effects, to determine alternative actions which would be less detrimental to the environment, and finally to prepare an environmental impact statement summarising all the environmental effects and the rationale leading to all decisions to be used by the decision-making authority as assistance in determining approval for a particular proposed action. This would result in a proposal put before a decision-making authority designed such that the resulting adverse environmental effects are minimal. The decision-making authority would need only to determine whether the change in the status quo, the environmental effect and other factors outweigh the advantages of approval for the proposal. (It should also be noted that the environmental impact statement would also highlight all beneficial environmental effects of a proposal along with any adverse effects. This procedure thus takes the onus from the decision-making authority to determine what areas need to be 22.
investigated to provide sufficient ma_terial to make a proper decision as to a proposal's approval. If the environmental impact procedure has been properly completed this data would be included, without specific request from the authority, · along with important data from areas the decision-making authority possibly would not have recognised with the previous methods· of approval.) The environmental impact statement would be a presentation of the results from the environmental impact investigation being an objective evaluation of the effects, safeguards and alternatives of the proposed development on the
C IC'" ' {'" ,: environment. This statement would be one of the total proposal documents submitted to the decision-making authority at the time when approval is sought so that the decision-making authority can assess the environmental effects and projected effects~~ the project prior to its approval as a means of ensuring adequate safeguards.are provided for the protection or improvement of the environment.
2.01.4 Environmental Impact Investigation The environmental impact investigation is a multi disciplinary -survey analys_is into a proposed objective and its effect on the environment. Several systematic methods are available to undertake the investigation. The New Soutn Wales Government has recommended-two particular types, one being that method of a questionnaire and the second that of an interaction matrix, both basically consisting of a check list of environmental elements. The initial stage of the environmental impact investigation is the survey determining the existing characteristics and 23.
r conditions of the environment. The identification of the characteristics of the environment can be determined with the aid of a check list listing all possible elements. It should inclu~e factors which make up the eco-system; social and aesthetic factors especially concerning urban areas or proposed cities and town developments. However, once the· characteristics have been identified field data collection is necessary to determine the quality and quantity of these characteristics for the recording of their condition. Additional literature surveys, field and laboratory studies, consultation with experts and interested parties, public or statutory hearings could be necessary to gather such information. Certainly obtaining all data could be a lengthy, time consuming process and would benefit if initiated at the concept stage of a project as intended. In addition no extrapolation of effects of proposed objectives could be undertaken until this basis data survey was completed. Once having collected the data an analysis is undertaken to produce a detailed definitive and quantitative description of the environmental effects providing sufficient information to permit an objective re-evaluation of these environmental factors affected by the proposed objectives. This analysis would indicate safeguards needed to be incorporated in the proposal to avoid or minimise adverse environmental effects, so as to optimise the benefit cost/ratio from the community viewpoint resulting in a "total environmental" benefit. Assessment of the above analysis is the final stage in the determination of the worth of a proposed objective. This examines the final proposed method of reaching the objectives, and its effect on the environment's status quo. 24.
The a~sessment brings together the effects on the environment which would be caused by the proposed action and a judgement as to the degree of significance of these effects, both adverse and beneficial, short and. long term, followed by an evaluation of the probability of the predicted effects to provide a conclusion as to the environmental impact of the proposed actions, completing the environmental impact investigation. In order that the results and the rationale used to arrive at the environmental impact investigation's conclusion could be re-assessed an Environmental Impact Statement is required for submission to the decision-making authority and circulated for the re-assessment of the proposed objectives and the resulting methods intended to achieve such objectives.
2.01.5 Contents This Environmental Impact Statement would be a sun1nary of the investigations but of sufficient detail to allow the decision-making authority to fully comprehend the rationale and data used to arrive at the conclusions of the investigations. The Environmental Impact Statement recommended in the draft guidelines of the New South Wales Government contains the following sections: 2.01.s.1 Summary: One or two page abstract of the Environmental Impact Statement containing - (a) Name of decision-making authority to which the Statement is addressed. (b) The title or name of the organisation wishing to undertake the proposed action. (c) A short description of the proposed objective 25.
and action. {d) Alternatives considered. {e) Possible adverse environmental effects. {f) The qualifications of contributors to the Environmental Impact Investigation {providing technical data and opinions). 2.01.5.2 Proposed Actions: A statement of the objectives and a complete description of the proposed action to reach such objectives, including the necessary technical data, feasibility studies, and other information to allow immediate assessment by the decision-making or reviewing authority without further requests for information, and would also include an analysis of the expected sources of pollution arising from the proposed action. This section would conclude with the justification of the site selection and choice of locality where relevant, and reasons for selecting
' C c..:... c. the proposed actions. 2.01.5.3 Characteristics and Conditions of the Existing Environment: An informative description of the characteristics and conditions of the environment in ~qalitative and quantitative terms prior to the implementation of th~ proposed objective highlighting the unique and rare features and factors important to the ecology and amenity of the area. To allow for an objective re-evaluation of the environmental factors, and the conclusions of the proposed actions, environmental factors, including social and biological environments, should be included by setting for that for: this section the boundary 26.
of environmental sphere of influence as being where no environmental effect takes place. 2.01.5.4 Alternative Courses of Action: Consideration of the alternative methods along with the justification for a change in the status qua, and discussions and explanations as to the reasons for the elimination of these alternatives. 2.01.5.5 Choice of Action: The environmental, technical and economic investigations associated with the actions to highlight the number of inter-related factors, including adverse and beneficial impact of the proposed actions on the environment, the resulting long and short term community benefits, the cost of the proposed action, including environmentai cost to the community. An assessment of the extent to which the proposed action would permanently eliminate any future use by the cumulative effect on the environment of the likelihood of attracting additional actions. 2.01.5.6 Impact on the Existi,!'.!9 Environment: Effects of the various components of the proposed actions on the characteristics and conditions of the existing environment are identified and noted for their beneficial or adverse results· and significance. The effects considered are immediate short term and long term, primary and secondary, the probability of an effect occurring and highlighting any irreversible or irretrievable commitment of resources such as minerals, water and land, and their justification for commitment required by the proposed action. 27.
2.01.5.7 Safeguards: The identification of safeguards and their specification incorporated in the proposed action to reach the objectives set as a means of minimising adverse effects while attempting to maintain the maximum environmental benefit. 2.01.5.8 Unavoidable Adverse Effects: The notation of adverse effects along with the reasoning for proceeding with. the actions despite the adverse effects to certain elements of the environment. 2.01.5,9 Review of Objections: A discussion of the objections received from all official and unofficial sources, including any summary or public hearings held, bring to light measures specifically included in the design to overcome the objections raised. 2.01.5.10 Sources of Information: A bibliography of reference documents, 1iterature sources, research reports, and information used in the Environmental Impact Investigation.
2.02 American Environmental Impact Statements 2.02.1 Federal National E~~ental Policy Act The American and State Environmental Policy Acts all include the requirement of Environmental Impact Statements and were used as references for the New South Wales draft guidelines for environmental impact assessment. This again warrants a closer examination of the American system of Environmental Impact Statements. Section 102(2)(c) of N.E.P.A. specifies that environmental impact statements must cover five (5) points: 28.
(i) the environmental impact of the proposed actions; (ii) any adverse environmental effects which cannot be avoided. should the proposal be implemented; (iii) alternatives to the proposed action; ( i V) the relationship between local short-term
' I uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
2.02.2 Californian State Act The State of California has issued guidelines for the preparation and evaluation of the Environmental Impact . 19 Statements under their Environmental Quality Act of 1970. These guidelines set out what that State expects the contents of an Environmental Impact Statement according to Section 21100 of their Act. When discussing a project it states that
"ali phases of a project must be considered
when evaluating the impact of the project
on ~he environment; planning, acquisition,
development and the operational effects
during the life of the project." The Environmental Impact Statement of any action significantly affecting the environment would involve: 29.
2.02.2.1 The Environmental Impact of the Proposed Action: A description of the anticipated primary and secondary environmental impacts, both beneficial and a~verse, and should include both short and long-term impacts. It is recommended that the inclusion of Specifics of the area resources involving: physical changes; alteration to ecological systems; changes induced by the proposed action in - population distribution; population concentration; human use of land (including industrial, corrmerdal and residential development); other aspects of resource base such as - water; scenic quality; and public services. 2.02.2.2 Unavoidable Adverse Environmental Effects if the Proposal is Implemented: A description of the types and magnitude of significant impacts which cannot be reduced in severity or which can be reduced to an acceptable level but not eliminated. For those which cannot be reduced, their implications and the reasons why the action is being proposed daspite these factors, should be described. This analysis should also detail aesthetically or culturally valuable surroundings, human health, standards of living or environmental policies which would be sacrificed and shall describe any objections by parties affected by the proposed action. 30.
2.02.2.3 Proposed Mitigation Measures to Minimise Impact: The description of mitigation measures included in the proposal to reduce significant-environmental impacts to acceptable levels and the basis why these levels are considered acceptable. 2.02.2.4 Alternative Actions: The description of alternative types of proposals or locations considered as possible means of attaining the stated objective of the actions. C C· The specific alternative on no action to be taken. A description of the alternative design or mitigation measures which could be incorporate~ to further minimise any significant environmental impact and the reasons ti7ese have not been included. 2.02.2.5 The Relationship Between Local Short-Term Uses of Man's Environment and the Maintenance and Enhancement of Long-Term Productivity: Describe the cumulative and long-term effects of the proposed project which either significantly reduce or enhance the state of the environment from the perspective that each generation is trustee of the environment for future generations. In particular, the desirability of the action shall be weighed to guard against short-sighted foreclosure of future options or needs. Special attention shall be given to effects which narrow the range of beneficial uses of the environment or pose long-term risks to health or safety. In addition, the reasons why the proposed action is believed by the sponsor to be justified now, rather than reserving a long-term option for other alternatives, including no action, shall be explained. 31.
2.02.2.6 Any Irreversible Environmental Changes Which Would Be Involved in the Proposed Action Should It Be Implemented: Describe the extent to which the proposed project curtails or expands the diversity and range of beneficial uses of the environment. 2.02.2.7 Identification of Infonnation: The identity of all Federal, State or Local agencies and other organisations and private individuals consulted in preparing Environmental Impact Statements, and the identity of ,. persons, firm or agency preparing the report. " 2.02.2.8 Amendments: Amendments shall summarise the comments and suggestions made by reviewing organisations and shall describe the disposition of issues raised. In particular, they shall address in detail the major issues raised when the sponsor's position is at variance with recommendations and objections. Reviewer's statements should be set forth in a Comment and discussed in a Response with the source of all .comments clearly identified ..
2.03 Discussions of Environmental Impact Statements As a result of the introduction of this Environmental Impact Statement and it being a new and revolutionary approach '"with th.e aim of becoming self-policing several Government agencies have begun to review the effectiveness of the procedure. A review of the Environmental Impact Statements at the regional level has been published by the Region 10 of the 26 United States Environmental Protection Agency. This review, '(' which includes appraisals, evaluations and comnients, after 15 32.
months with the National Environmental Policy Act, examined 250 Environmental Impact Statements, claimed that none were totally adequate, and suggested the following improvements.
2.03.1 Environmental Impact Statements as a Warning An Environmental Impact Statement should highlight or warn of a contemplated action that, if permitted, will violate the policy of applicable Local, State and Federal laws, including regulations, standards and criteria designated to protect the environment.
2.03.2 Description of Environmental Impact both PRIMARY and SECONDARY Most statements fell short in primary impact description and failed to even mention the secondary impact (such as commercial development) as the result of the proposed action. Secondary impact, especially for highway projects, can be more important than primary impact.
2.03.3 Future Development Commitments Discussions were weak as to how projects constructed to-day may effectively commit the community to further developments with adverse environmental effects in the future.
2.03.4 Discussion of Alternatives No environmental impact statement adequately discussed all alternatives. When alternatives are mentioned they were generally· only engineering or dollar cost-oriented rather than social, legislative, proper landuse, or other types. Many failed to even consider the required alternative of NO ACTION. 33.
2.03.5 Discussion of Short-Term Versus Long-Term Relationships ~an's Environment Particular attention was directed to the cumulative effects of several proposals on future choice - no environmental impact statement adequately describes how an
C- ' •• c, individual project fits into the long-range proposals; although some proposed projects were examples of complex systems where individual projects will have_ synergistic effects.
2.03.6 l~gislative Responsibility Most environmental impact statements construe environmental considerations too narrowly - within the framework of strict legislative mandates. It is recommended that all environmental ramifications of present specific authorities should be considered and adjustments made to programmes to protect the .environment while carrying out the legislative responsibility.
2.03.7 Adverse Effects On some occasions the adverse environmental effects will dictate that a programme should not be undertaken at all; this should be so expressed.
2.03.8 Comment Documentations Proper attention and full consideration of all public and private reviews, comments, statements and testimonies were not adequately documented in all statements. Following on from these suggested improvements the following comments were made: 34.
-~\ "The major reason for the effectiveness
of the (N.E.P.A.) Act was that is required
a full disclosure of potential actions
which significantly affect the environment
prior to approvals to proceed."
"Not only must the proposing, licensing,
or funding agency prepare a detailed
description of how the proposed action will
affect the environment and submit this
statement for agency and public review,
but the reviewing agencies are required
by law to make their comments available
for public review."
"In the areas of landuse planning at the Local
level, environmental impact statements
have a great potential and ·can be used
effectively."
Primarily an inter-disciplinary approach, but not a complete ecological evaluation, is achieved for comment with statements received being routed to people with special expertise in - Air Quality Water Qua 1i ty Engineering Biology Land Use Management Nois.e Abatement Solid Waste Disposal 35. C ,. ·~ e,
Pesticides Economics, and Radiation Health, ;~ Each person having an interest in the proposal then has an opportunity to comment. The various comments from these people and others are then incorporated into a meaningful interpretation by the environmental impact statement programme staff and made available to all agencies and to the public.
2.03.9 Comment Time To enable all these entities to make informed co·mments, the guidelines of the Council on Environmental Quality require that draft statements be circulated and released to the public for review AT LEAST 90 DAYS before the proposed action. The agency must consider the comments it receives and change its proposals and the statement as appropriate. The agency must then make the final statement and comments public at least 30 days before taking action. This results in a 60 day draft statement comment time and a further 30 day final statement comment time. When a public hearing is held, the draft statement is made available 15 days beforehand to permit informed discu~sion of environmental issues. A draft statement being capable of serving as the final or 'detailed' statement if no comments come back. Agencies and private groups, whose interest and expertise put them frequently in a conmenting role, have complained at times of the difficulty of preparing helpful comments in only 30 to 45 days. Even with adequate resources, 36. it is often impossible to prepare comments in 30 days that will do justice to a draft statement that may have taken years to prepare. One argument holds that when a commenting group or reviewing court has pinpointed a defect in a statement, it should be corrected in a new draft and the new draft circulated for additional comments but recirculation should be considered only when the second statement discusses significant new issues. A different situation exists when an agency changes its plans and proposes an action not even discussed as an alternative in the draft; in such an event it is a new proposal and should be subject to a draft statement of its own whenever the proposed action i~ major and the environmental effects signficant.
"Briefly N.E.P.A. has three main parts -
(i) Establishment of national environmental
goals.
(ii) Section 102 sets the basis for
Environmental Impact Statements
and is the action-forcing
mechanism of the Act.
· (ili) Establishment of the Council on
Environmental Quality (CEO) -
a three-member Council to recommend
methods and procedures of implementation
of the Act.
The congressional purpose of this law was to build into
the daily processes of government a careful
consideration of the environmental changes 37.
which the government actions would
bring about by containing a self
policing feature of Environmental
Impact Statements.
An Environmental Impact Statement being
a report of one page or volume
describing the environmental effects
which could result from proposed
actions or activities funded by the
Federal Government legislative
proposals, changes in agency policies
or operative procedures."
"The role of the Courts have resulted
in the following clarification:
An environmental impact statement
prepared by a Federal Agency must:
(i) contain DISCUSSION OF
ALTERNATIVE COURSES OF ACTIONS
even though the agency lacks the
power to adopt such alternatives
or put them into effect;
(ii) included in these alternatives
that of NO.ACTION."
2.03.10 Personnel As can be seen from the previous discussions the environmental impact investigation is a diverse field incapable of being fully investigated by a single person. What is required is a multi-disciplinary group. 38.
Once the investigation survey has been completed by the various disciplines an individual or another group is needed to assess the analysis of the effects in all these discipl1nes, and it would be quite feasible being left to one person to write the resulting environmental Impact statement. However, the statement, on being received by the decision making authority, would need to be checked as to its validity
c and Cc·ontent to determine the accuracy of material used and the omission of any relevant items which could influence the proposed ~ction; knowledge in the multi-disciplinary fields would be needed. Ha~ce, the personnel both at the investigation, writing and finally the verification of the impact statement would be more than just a few people, and in many cases would require a team of people. While no doubts exist as to the availability of the personnel required, a streamlined communication network is needed to provide an efficient process of environmental impact statements to avoid long delays in contributions from the various disciplines.
2.03.11 Accuracy For the process of environmental impact to become a useful tool in achieving the objectives of protecting the environment the data used must be both factual and accurate. For this to be achieved review of environmental impact documents is essential. The American process has been arranged for the challenge of the statement by private citizens through the courts by the 39.
inclusion in a Statutory Act. In Australia no legal requirement is available for such action by a private citizen. The citizen can only rely on the government to take action or attempt to have action taken by pol iti ea l coerci or•.
If the view is taken that the wno1e aim of in~ ~nmental Impact is that taken in America of provision for public sc,·;;tiny of government actions, then the process at present planned for New South Wales is at variance with this aim . . But despite this shortcoming in New South Wales, since the environmental impact approach to development is a very new undertaking by any Government it is difficult to achieve the accuracy that is desired since it is claimed the information is not available. Hence the problem arises of the high possibiJity that a proposed action would be approved, based on a particular environmental impact assessment and statement which could be found inaccurate on completion of a proposed action. It should be required that the environmental impact statement is re-investigated after the approval a.nd completion of the proposed action. · This feedback of information and verification of environmental Impact statement claims is an essential process to ensure accuracy of the whole procedure and has been omitted by both the New South Wales and American process. In the U.S.A. there may be·a case for its omission on the basis of the amount of data already existing on their environment along with the legal system of the ability for private citizens to challenge a statement, and the statements being made public creating a sufficient number of checking devices before 40. implementation that little unnoticed adverse effects would result to warrant a required procedure of investigation at the completion of a proposed action. 41.
3. SOME FEATURES OF LOCAL GOVERNMENT The Government of New South Wales has vested the responsibility for ensuring an environmental Impact is undertaken with the 'Decision-making authority'. A decision making authority is any (N.S.W.) Statutory Body. To assist in the understanding of what constitutes a Statutory Body a discussion of such Bodies has been enclosed in the appendix and since the concern of this study is of the Local Government, a discussion is also included in the appendix to provide some understanding of the constitutional difference between usual Statutory Bodies and Local Government.
3.01 Unique Features and Environmental Consequences Local Government is a statutory body with unique features, being vested with the authority to protect the interests of the residents within the boundary of the 30 particular Local Government area. However, it does not have authority over land withi.n its boundaries owned by another statutory body (State or Commonwealth). Local Government, being closest to the people, is expected to reflect in its decisions and recommendations the feeling of its ratepayers. Planning and zoning of an area is done by the Council, with the approval of the State Planning Authority, but only concerns the land over which the Council has authority. Since the initial environmental conflicts would occur during the decisions with regard to this zoning it would be feasible to expect Local Government to be more often directly involved in environmental Impact procedures. Besides having authority over the zoning of an area the Local Government is expected to reflect the feelings of the ratepayers who have 42. elected its members and should bring to the notice of other Statutory Authorities such feelings towards environmental effects brought about by any action by that Statutory Authority on its own land within a Local Government area. However, there is no statutory requirement, as yet, to require any Statutory Authority to heed the expressions of such Local Government representation; environmental Impact could offer this opportunity if it were a statutory requirement. Although Local Government could take the attitude of maintaining an environmental balance to the satisfaction of the people they represent conflicts over land use could arise due to their lack of authority over another Statutory Authority's land. For example, the Commonwealth Bank (a Commonwealth statutory body) may own land adjoining a residential development; the Bank could install on their property a Stores Department creating a high degree of transportation which could interfere and conflict with the purpose of land use of the residential development adjoining the property - an environmental conflict over which the Council has little control. In the light of environmental impact policy a local 22 government shall find itself in one of three positions - (a) The decision-making authority required to assess the Environmental Impact Statement and ensure that particular safeguards are included in a proposed action prior to their approval: (b) The developer undertaking the construction of roads, sewerage plants, and other public amenities. In this case Local Government would need to have available the ability to write.an Environmental 43.
Impact Statement:
(In regard to these two items Professor Burton of New England University, a member of the S.P.C.C.'s technical advisory committee presenting evidence as a private contributor to the committee of Inquiry into Environmental Procedures claimed · that 90% of all development and Building Applications handled by any Decision-Making Authority requiring environmental assessment would be the 225 Local Government areas in New South Wales).
(c) An interested party wanting to comment on an environmental Impact statement of an action having some effect on, or concerning the particular Local Government area and residents. In this case the Local Government needs to be aware of the implications a proposed action, not necessarily within their boundaries, has on their community. This awareness involves not only the effect but the degree to which the proposed action affects their ratepayers and Local Government land. This requires some environmental Impact . knowledge, and although not involving completely an environmental Impact or an environmental assessment, sufficient is required to warrant the need to have available the ability to complete an Environmental Impact Statement. From the above it can be concluded that Local Government need the ability to compile and assess environmental Impact studies. 44.
3.02 Required Personnel and Finances Since environmental Impact is a multi-disciplinary task it requires a number of expertise to cover the areas needing examination and assessment. This highlights the · problem of finance in Local Government. Lack of finance has been a problem within the Local Government area although finances are raised by rates paid by residents and to some extent borrowing through Government loans. There is always heavy competition for funds and it would be difficult for a Council to justify the expenditure of having all or most expertise on staff if they aren't fully employed; and ' because of the uniqueness of some of the environmental elements and the seldom occurring interaction full employment of such skills would be difficult to achieve. Hence it is and will be difficult for Local Government to justify the costs of having experti ser-,for environmental Impact on staff with many other areas lacking in financial support of more importance when related to the community and the ratepayer. Besides the consideration of staff member, no matter what method achieves the aims of environmental Impact experts will be needed and they are expensive. Thus Local Government have inherited a large financial burden as a result of the Government's Environmental Impact Policy, and now must seek means of bearing this burden. If this cannot be solved.then the efficiency of implementing the State Government's Environmental Impact Policy is restricted severely since Local Government is so deeply involved in the enactment of the policy.
3.03 Clarification of Procedures Further clarification and procedures have to be made 45.
to assist the decision-making a~thority to carry out its duties. The following discussions are specifically related to Local Government although generally the same problems exist where other decision-making authorities are involved.
3.03.1 Defining a Major Project When considering any action it is important to specify when a decision is made as to the need for an Environmental Impact Assessment. (For a development project, the developer considers the financial undertaking of a development on estimates of the time required for loans and the costs involved. If clear guidelines are not given by the decision-m~king authority as to what will constitute the need for an environmental Impact it could well mean' financial bankruptcy for the developer who underestimates the need for an environmental Impact, and therefore does not allow this figure in his cost estimates, since the environmental Impact could directly cost in the order of 1 to 5% of the total cost
of the project, while delays could cost 10 to 20%, quite "·,. easily eliminating the profit margin or increasing the amount of capital outlay at .an early stage of the project, causing a heavy financial burden, eventually being passed on to the community.) It would be essential for a decision-making authority to set guidelines in draft town planning scheme ordinances as to what size or type of development requires an environmental Impact. Such provisions should be made so that the developer is able to undertake feasibility studies independently of any Council to arrive at· a preliminary decision as to the possibility of continuing with a development to decide if the submission 46.
of any development application 1s worthwhile. Groups wishing to reduce speculation of their future actions would be more inclined to carry out such actions in areas where the decision-making authority has been specific as to what requires an environmental Impact since information or even notice of the Group's intention need not leave the group until a preliminary investigation of environmental Impact has been made. With Local Government the laying out in explicit details requiring environmental Impact could be the final influence in attracting developments to the area.
3.03.2 More Than One Decision-Making Authority . It is stated, in the Statement of Principles, that the responsibility to ensure that the Environmental Impact Statement is prepared lies with the decision-making authority. However, certain problems exist when more than one decision making authority is concerned. Where more than one decision making authority is involved it is stated that that authority which controls the major portion of the development is classified as the decision-making authority in reference to environmental Impact, but one would wonder which decision-making authority, if more than one is involved, has the final say as to the need for an Environmental Impact Statement. There may be conflicting views between the decision-making authorities as to the need for such a Statement. While being the major decision-making authority it may not mean there is an environmental conflict in the major area. However, a small portion of the work may have a highly controversial element and may certainly require an Environmental Impact Statement. Then there can occur the 47.
situation of two decision-making authorities involved on one project but have to make decisions concerning two separate but necessary sections of the project. For example, an Oil Company may need approval from the Local authority as to the building of a refinery but may need to obtain approval from the Department of Mines for any pipelines leading into or out of the site. Since the project requires the approval of both sections before the project
' is feasible it would be expected that only one environmental Impact report for the whole project would be required. However, difficulty in bringing both decision-making .authorities together to determine who would keep the interest of the other in mind wfil create problems of achieving one decision which satisfies all decision-making· authorities.
3.03.3 Contrary Decisions In the past, especially at Local Government, development applications decisions have been given without explanation. This would need to be discontinued 1f environmental Impact is to proceed since without explanation the public cannot scrutinise the decision. Also, if records of environmental decisions by Local Government were kept including results of appeals it could assist the compilation of an Environmental Impact Statement. Since the number of experts is limited a need exists for the provision of an appeal stage which includes documentation of appeal material for future reference as a means of improving environmental Impact assessment. The policy of environmental Impact provides the opportunity of the public scrutinising Government decisions 48.
and is a lar_ge step towards eliminating contrariness of decision-making authority decisions by providing the public with the data on which the decision is based.
3.03.4 Ski 11 s As previously mentioned a diversity of skills is required for environmental Impact. The decision-making authority would need to have available to it people with such skills. Where Local Government is concerned, because of the difficulty in employing such skills full-time, the availability of a 'general practitioner in environmental studies' may be of benefit to such a group as an adviser on environmental Impact highlighting possible areas of concern. The 'general practitioner' would be familiar with the various areas of environment and able to communicate within the various disciplines, but not expert in all the particular skills, to carry out full-scale investigations, but able to indicate where investigation is needed and where information has not been sufficient in an environmental Impact.
3.03.5 Impact Investigations and Consequences of Public Comment A major consequence of the Environmental Impact Policy is the public's opportunity to comment on a proposed action as to its effect on the environment. It is important to determine how the decision-making authority shall obtain comment from all interested parties. If this comment collection is carried out correctly it will indicate to the public the degree to which a Local Government is operating within its powers to ensure that proposed actions are best for the area, ensuring the maintenance of the environment and well-being of the public, 49. while at the same time educating the public as to what the proposed action involves. No indications as to how the decision-making authority should achieve this comment has been given except the mention of public inquiries. If environmental Impact is also to succeed a procedure should be set up such that all parties can anticipate what is expected of them pr~or to the need. This would ensure the policy since each party is likely to enforce what is due to it. Thus if public comment is truly intended (which is the real essence of environmental Impact) a procedure to achieve this must be firmly set. Besides public comment environmental Impact seeks comment from other Statutory Bodies. Having in mind the unco-ordinated formation of statutory bodies (see appendix) and the difficulty to completely comprehend their powers, an investigation should be undertaken to determine - an efficient method of obtaining comments on a proposed action; and the number of impact statement copies needed to gain maximum effect; a recommended total period to be allowed for obtaining such comment from all bodies. In America a federal agency must first produce a draft Impact statement and make it available for comment 90 days prior to the proposed actions being implemented. This allows for an initial comment period of 60 days when a final statement can be produced allowing a further 30 days for comments to be collected before final approval. In New South Wales draft guidelines issued both the 90 day and 60 day comment period were mentioned without giving reason for such figures. Such figures need to be justified, 50.
which requires a complete investigation into bodies and parties likely to comment and the amount of time each group would require. Certainly the system of a 'central clearing house' has not been set up in New South Wales as is the case in America. The 'central clearing house' receives all Environmental Impact Statements and arranges for other agencies . to comment on the Statement. The clearing house receives back all the comments and passes the original Impact Statement and all comments collected within the specified period back to the originating agency.
3.03.6 Accuracy and Responsibility It could be claimed that since environmental Impact is a projected guess as to the effect of a proposed action on the existing environment and is a relatively new-attained 'skill', then the possibility of 100% accuracy is remote. Thus in the early stages, at least, approved planned actions need to have re-assessment of the Impact Statement at later 1' intervals. Since the Environmental Impact Statement is a projection of the future as to the total effect of a proposed action· on to the environment is as it exists at the present stage, and is the basis document on which the approval decision is given, it would seem reasonable that a later study of the real effects on the environment needs to be made for comparison with the projected effect claimed in the Environmental Impact State~ent. Not only would this provide extra data and confidence in the decision-making authority's skills for assessment of future Environmental Impact Statements 51.
\--:.., it would also assist in the continual updating of existing environment data for a decision-making authority. It seems inconclusive that a decision-making authority should.approve a particular development on the basis of projected guesses without ensuring after approval and implementation of an action that all the proposed measures have been effective, and that the lack of absolute guarantees at the decision stage has not prevented ensuring the actions do all that was claimed in the Impact Statement at the application stage. Certainly since a decision has been given based on an Environmental Impact Statement the decision-making authority should accept some responsibility to ensure that all claims are achieved. However, it may be found that the precautions listed in an approved Environmental Impact Statement were not sufficient in attaining the degree of environmental preservation as was claimed. Obviously corrective action would need to be taken but all parties responsible for the data and approval of the original Environmental Impact Statements (both the decision-making authority and the proposer of the action) would need much soul searching before claiming immunity from the responsibility of allowing approval of a detrimental environmental action.
3.03.7 Confidentiality When an applicant supplies a full Environmental Impact Statement for approval of a proposed action, it could be anticipated that some sections of the study would be classed as confidential and hence, to safeguard the applicant, the reviewer of the Statement would need to operate under this knowledge such that members of the public would not be able to 52. view this confidential information and possibly hampering comment from the public or any department on the Impact Statement. Problems then arise as to who specifies what is classed 'confidential' and decides which bodies need to ascertain confidential information. It would certainly be feasible for a Company, hoping to avoid a lot of public conmen-t, to classify almost all their information as confidential unless the situation is better clarified where the claim can be challenged by some other body. Certainly the area of definition of what is confidential could become an area of conflict between the decision-making authority, the public and the applicant. 53.
4. CONSIDERATIONS AND RECOMMENDATIONS FOR IMPLEMENTATION OF ENVIRONMENTAL IMPACT IN NEW SOUTH WALES
*"Weare asking that Federal, State, County and City
Administrators and planners listen to the sound
of the times and accept the role of stewardship
of our natural and social resources both in spirit
and the letter of the National Environmental
Protection Act (N.E.P.A.). It is a massive challenge
to make engineering expertise the means of
developing a quality of life. It is a challenge
wo~thy of the highest dedication; it is a
challenge which must be met if we are to
provide ourselves and our children with a
livable world.
Conviction, co-ordination, integrity, participation
and partnership; there can be no silent partners,
no secrets, no deals i"n this programme, and each of
us must participate in areas of joint concern to
our fullest capabilities to stop polluting and
exploiting activities.
Environmental Impact Statements are cqnsistent,
potent, hard-hitting, (Federal tool) with
muscle mobilised behind the punch to ensure
environmental cleanup and proper land use planning." The above quotation is a statement on Environmental Impact Statements after 15 months operation of American Environmental Protection Act. This summarises the objectives
* This appeared in a review of environmental impact statements 26 at the regional level of the United States Agency for Environmental Protection, Region 10, April, 1972, by Hurlon C. Ray, Seattle, Washington. 54.
of N.E.P.A. and the environmental Impact method. The author assumes the same should be the objective of the New South Wales Environmental Impact Policy, and has assumed it has been. The quotation virtually summarises the desire that must be achieved for the attainment of all objectives of environmental improvement and retention and improvement of quality of life. With this in mind the following comments and recommendations are put forward for improvement of the environmental policy of the New South Wales Government.
4.01 Should Environmental Impact Policy Continue? It is agreed that the principles of environmental Impact policy is corrrnendable for showing some concern for maintaining environmental quality. Since this is desirable the conclusion should be drawn that the policy should apply but the form needs to be investigated.
4.02 An Environmental Objectives Act Before any 'preservation of the existing environment• can be achieved Government must agree on a definition of this phrase. That is, the Government of New South Wales, since they have brought about this phrase, needs to bring about a binding document (most probably an Act) for all parties defining environmental objectives, setting out standards of environment the community should achieve, and the quality of life that should be made available to individuals. Once this has been achieved environmental Impact then becomes a comparative procedure to compare a proposed action's change to the environment with the environmental principles set by the Government. Only then can true comparisons of effects 55.
of unrelated disciplines be achieved.
4.03 Existing Environment Data Collection Method The whole basis on which environmental Impact Assessment and Statement relies is the accurate determination of existing environment conditions. Hence it is important that the existing environment study is undertaken thoroughly. With this thought in mind, it is imperative that sufficient time is allowed to determine the true environmental characteristics of an area rather than the seasonal characteristics of certain natural factors. It has been stated in many cases that in natural areas it could be quite feasible that an environmental impact study of sufficient accuracy of existing environment would take a minimum of 12 months whereby the effect of seasonal change would be noted on the environmental surroundings, but this would not be as accurate as a number of seasonal changes since it would be difficult to determine whether an abnormal year had been experienced. (In the area of climatology it has been shown that upwards of 25 years experience is needed to be able to predict with reasonable accuracy the repeatability of certain climatic situations). It would be unfair to expect an applicant to wait such a period to determine the normality of his data. Hence it is recommended that the existing environment data be collected by central government agencies, especially Local Government. Local Government or Regional group~ should carry out their own individual investigation and monitoring of the existing environment (but would need large financial assistance from the State and Cowrnonwealth Governments) to provide a 56.
data bank for any applicant for a proposed action. This method of data collection could be achieved by various methods, and it is suggested that a 'co-ordinating' environmental officer in each Local Government could highlight areas of need and this passed on, with financial assistance, to schools in the area to collect such data as part of the pupils' environmental study science courses. Besides this the various conservation and interest groups of the area should be allocated funds to obtain this required with a decision knowing they have made useful contributions. 4.04 Justification of a Change of Existing Uses The initial discussion in an environmental Impact procedure for a proposed action is a justification on a change of existing uses and then to provide reasons based on community benefit why the use of the proposed action should be chosen in preference to any other action and in light of this decision due consideration should be placed on the attitude that to-day's generations should carry out a stewardship role on the environment to maintain the largest number of alternatives of the uses of the environment for future generations, and thus any proposed actions that result in irreversible commitments of resources should be closely scrutinised. For example, once an area has been approved for a quarry it could not be proposed for a wilderness area; this decision should be cautiously weighed prior to approval. 4.05 Comments from Outside Bodies 4.05.1 Confidential Material An appeal network should be set up so that claims of 'confidential material I can be challenged and verified by an interested party. Without this, the withholding of material as confidential would complicate the problem of re-assessing an applicant's claim that his proposed development is of benefit to the,community and the environment at large by the difficulty caused to interested parties' comments whereby confidential material could prevent certain important comments arising from the public and other Government bodies' considerations. 58. 4.05.2 Other Government Departments An investigation must be undertaken to ascertain the length of time and the number of impact document copies needed to provide all Government Departments sufficient time to comment on a proposed action. Since the section that makes environmental Impact revolutionary from the normal decision procedure is the opportunities provided for all interested parties to comment, the effectiveness of this section determines the effectiveness of the whole policy. Hence it should be determined if such opportunities are feasible before the policy is further enforced. An investigation is required to provide recommendations as to how to achieve these opportunities of comment efficiently. 4.06 Onus No Longer On The Decision-Making Authority The introduction of environmental Impact, as proposed in the Statement of Principles and the draft guidelines issued by the Minister for Environment Control, takes the onus from the decision-making authority of pinpointing likely areas of environmental effects (requiring knowledge of such an area to be aware of any likely effects). The applicant is required to include_all possible environmental effects of a proposed action in one document with a summary of the total trade-off - the Environmental Impact Statement. It is now upon the appiicant to discover and consider all areas of environmental concern. The Environmental Impact Statement provides the benefic,ial effects to be weighed against the included adverse effects for the decision-making authority to arrive at its decision. This approach seems more thorough than the previous method of decision making. 59. However, once a decision-making authority arrives at a decision using the Environmental Impact Statement, it should accept some of the responsibility, along with the applicant, of any resulting effects not considered in the Impact Statement. 4.07 Ensuring Decision is Carried Out The decision-making authority once approving an action on the basis of an environmental Impact should take some means to ensure that all measures mentioned in the Impact Statement are carried out. It has been recommended previously that the existing environment be undertaken by Local Government and this would be a good method of determing whether a recommendation or claim in an Environmental Impact Statement has been authentic. At present the Environmental Impact Policy has no method whereby a backcheck is taken on a development to verify all claims made for a proposed development. Since environmental Impact is such a new field it is likely mistakes and errors will be made in the early stages of the policy enactment. 4.08 Appeals It is inevitable that there shall be appeals against decisions made by a decision-making authority. It has been pointed out the policy allows for the S~P.C.C. to act on appeals and to assist in bringing about a final decision. However, a further step in appeals, if no satisfaction is gained from the S.P.C.C., is that of the Premier. At this point decision conditions could change. Previously decisions are based solely on factual evidence, but at this last stage they become political. Thus a small politically ac~~ve group could have particular influence on the Premier and his 60. decision eliminating the whole aim of environmental Impact - that of separating the emotional grounds from factual evidence, and weighing up the advantages and disadvantages of a proposed development on facts and arriving at a decision based on those facts rather than political and emotional grounds. However, certain conflicts over demarcation are brought about with the fact that in Local Government there already is an Appeals Tribunal whereby decisions of development applications and appeals resulting from such decisions are taken to a tribunal for final assessment and decision. It is recommended that the environmental aspects of a development should be includ~d in this Appeals Tribunal since it would be difficult to assess the final approval of a development if the areas are divided into two areas and considered by two distinctly different groups - environmental grounds considered by the State Pol~ution Control Commission and all other grounds considered by the Appeals Tr.ibunal. The Appeals Tribunal should be restructured to include a member or members of the S.P.C.C. and the Appeals Tribunal to consider all appeals including those containing environmental matter, but the S.P.C.C. may consider appeals on decisions-solely concerned with env~ronmental matters. This method of having members of the S.P.C.C. on the Appeals Tribunal is aimed at obtaining some type of com.mon approach and outlook in environmental considerations and the weighing up on equivalent grounds as to that of any other grounds of appeal. 61. 4.09 Legality As yet there is no statutory requirement for a decision making authority to carry out or ensure that an Environmental Impact Statement is written. It is assumed that this will eventually come. It seems that since the Minister for Environment Control, having published an outlined statement and releasing various draft guidelines to environmental assessment that he is fully intending to have jurisdiction over Government 1 s aim of environmental Impact. But the Minister only has jurisdiction over one Act - the State Pollution Control Commission Act - where provision is made for regulations. ·- Eventually the Minister will probably introduce regulations to this Act that will oblige all statutory bodies to ensure environmental impact studies and assessments are carried out. However, it would seem difficult for the S.P.C.C. Act to commit all other statutory bodies since the Act only covers inconsistencies of other Acts of other· statutory bodies. It would then seem improbable that a section written . into the S.P.C.C. Act that does not conflict or even enter into areas not contained or causing conflict in other Acts controlling other statutory bodies to commit those statutory bodies to action on the lines of enviroAmental Impact. Until such time as regulations or a new Act are passed by parliament there is .limited legal method whereby a Council can require anything resembling an Environmental Impact · Statement. However, it is conceivable, that the Commission without the regulations could order a decision-making authority to insist upon reports which will contribute to the prevention of 62. pollution, etc. under Section 13 of th~ existing Act (that being something within the powers of the authority). Then if the decision-making authority refuses to carry out the order of the S.P.C.C. a dispute arises and the Premier may decide in favour of the Commission, but the Commission can only act in lieu of the Council to request an environmental Impact assessment only after this has taken place, that is, where the Premier has decided in favour of the Commission and the Council then refuses to carry out the Premier's decision. Unfortunately, this ultimate course of action has no real provision of appeal against the Premier's decision, and this action seems to contradict the whole aim of the Environmental Impact Policy which requires an unemotional . assessment of the situation. So, if any statutory requirement is to be instigated to require decision-making authorities to ensure environmental Impact is carried out it should be a new Act and not an amendment to the S.P.C.C. Act (Special note shou~d be taken of the first recommendation)~ or, if it is desirable to just cater for Local Government, an addition should be made to the Local Government Act while holding the reservation that this Act has been proved in past appeals to have so many contradicting precedents that if environmental Impact were written into the said Act there could exist the possibility of not b~ing completely enforceable in all cases. 63. 5. ADDENDUM-NEW GUIDELINES On the 27th September, 1973, 11 Guidelines for application 28 of En vi ronmenta l Impact Po 1 icy in New South \·la 1es" became available under the authority of the Minister of Environment ·control. These guidelines were the result of comments obtained from draft guidelines previously issued and referred to in this study, and a public inquiry on the assessment of environmental Impact. These guidelines still have no statutory backup but do indicate some major variation from what was first indicated leaving a doubt as to the Government's sincerity on environmental control". Of particular note are the following items: 5.01 Onus Change The onus of deciding if an Environmental Impact is needed haf, been placed on the decision-making authority requiring the authority to have a good.advisory service to make such a decision. It should be realised that a" decision must be made and to do this thoroughly, knowledqe of a proposed action's likely effects must be recognised requiring multi-disciplinary skills if the environment is to be considered and this results in large expenditures for having such skills available. 5.02 Not All Elements Considered It is now sufficient to consider only some elements of the environment in an environmental Impact. This virtually con tributes to the short-comings discovered in the U.S.A. that secondary effects are not discussed or considered in some invest igations. Without including all effects on the environment, synergistic effects (one affected element affecting a second element) are more likely to be overlooked resulting in an 64. erroneous assessment of the proposed action's impact. 5.03 Discussion of Outside Comments In an environmental Impact Statement the provision of discussion of comment from outside bodies has been eliminated. This implies that outside comment will not be encouraged as initially proposed. This is the drastic change to the guidelin~s. The 'revolutionary' section of the environmental Impact was the provision for public comment and deliberation.of such comments prior to the decision on a proposed action. Now without this provision there seems little opportunity for bodies other than Government bodies having comments presented such that they a re considered by all persons reading the environmer.·.:& 1 Impact Statement. The result is the return to the existing system of decision making with the Government Departments being updated with some 'environmentally skilled' personnel. 5.04 Declaration of Environmental Factors Another inclusion in the guidelines which gives the impression of little encouragment of public comment is the operation of the public statement called a Declaration of Environmental factors. When a decision-making authority re quires an environmental Impact investigation the public statement is to be announced in the local press, but no such publication is made when the decision-making authority decides that a proposed action does not require an environmental Impact investigation, restricting public scrutiny of Government decision ('~he real aim of the Policy of Environmental Impact). 5.05 Is the Government serious about the Environment? 65. Besides the apparent dilution by the ~~idelin2s of Environmental Protection as originally indicated by the New South Wales Government a rather lax approach appears to have been taken in comparison to the United States to provide their policy with statutory enactment with regard to environmental quality. Since January, 1972, and the Premier's announcement of environmental Impact policy, very little statutory action has been achieved that compels Government bodies to anact the policy or give the public some assurance that the policy is not just empty utterances. Some actions of the New South i1a 1es Government even appear to contradict their claimed attitudes of environmental ,Impact and its policy. 5.06 Background* In New South Wales the Clutha Act was introduced into the New South Wales Government which allowed for Government \ . assistance to enable the minin_g and shipping of coal from the Il 1awarra area by a Japanese Company. This Act and the proposed action created a large public controversy and is considered by the 5 author to be one of the main inertial factors in bringing about the introduction of the Minister for Environment Control and Environmental Impact Policy as a means of pacifying the public * In the United States the background to the National Environmental 18 Policy Act was that an Act was introduced in 1969 which was to bring about a Council for environmental quality. However, during the time of discussion of this Act the Santa Barbara oil spill disaster occurred and was cited by many people as an example where Government assurance that safeguards have been undertaken were not sufficient to ensure safeguards were actually carried out. This disaster tempered a lot of the argument a~d discussion that resulted in the National Environmental Policy Act having in it a section that attempted to avoid the appearance that jus·c utterances by the Government would be sufficient, and included the now well-mentioned section 102 which includes environmental Impact process which had to be carried out by all Government agencies. 66. by attempting to show that the Government is concerned with environmental factors. However, other than utterances, except for the State Pollution Control Commission Act which was intro duced prior to Clutha, there has not been any statutory regulations to enforce the policy that the Minister for the Environment introduced. It was in January, 1972, that the Environmental Impact policy was announced and further to that, in January and September, 1973 that draft guidelines and guidelines ~Jr the application of the environmental impact policy were released respectively. These guidelines have been the only progressive act towards enacting environmental Impact policy. No statutory action has been undertaken or appears to be under consideration despite the lack of statutory law to back up the policy being recognised by the Minister. 5.07 State Pollution Control Commission Restricted The State Pollution Control Commission is the only t0Jy under the Minister for the Environment that is given statutory power to enforce duties that could resemble in some form that 27 of environmental impact. However, in its Annual Report released in September, 1973, for the year ended 30th June, 1973, the following remarks were made as to the running and function of the Commission: "In October, 1972, the Minister advised that the functions to be exercised by the Commission were to be - (a) All those powers contained in Section 11 of the State Pollution Control Commission Act with emphasis on the control of pollution rather than more 67. general concepts relating to the protection of the environment, and (b) Such powers as contained in Section 12 of the State Pollution Control Commission Act when the exercise of those powers axe essential to the exercise of mandatory powers in Section 11. The Commission advised the Minister that it found considerable difficulty in understanding how it could function effectively with such a limited charter since it would seem that fox the Commission to perform its mandatory responsibilities it would need to .use the functions, powers and authorities contained generally in the Act and not just part of those contained in Section 12. The Commission is still awaiting clarification of the issue." Besides this rather alarming statement by the State Pollution Control Commission it is also noted that the financial and staffing arrangements of the Commission are such as to certainly inhibit its true function as expressed by the State Pollution Control Commission Act, and again in quotation from the Annual Report it is stated that "Commission received no direct financial allocation in 1972-73. Its expenses were met by a special item in the appropriation provided for the Department of the Environment". During the year all staff services for the Commission were provided by Officers of the Department of the Environie~t. It would seem here that the Minister for Environment Control has 68. certainly tied down the actions of the State Pollution Control Commission to his jurisdiction completely which appears to be contrary to that expressed in the State Pollution Control Commission Act. 5.08 Pollution Control or Environmental Quality Control? Further to this evidence that the Minister and consequent ly the Cabinet of the New South Wales Government, are concerning themselves more with pollution and tending to tread very lightly on environment control other factors enforce this feeling. While admitting that the Minister for Environment Control has attempted to produce guidelines for the application of environmental impact policy it is also recognised that no statutory regulations or requirements to carry out this policy, or enact this policy, by any Government body have been implemented despite the Minister's acknowledgement of their need. In the light of the controls put on the State Pollution Control Commission and these following comments it would seem that the Minister and Cabinet are merely paying lip service to that policy of environmental Impact. Certainly, when compared with American approacr.es on setting up an environmental Quality Act as the backbone of all their environmental action to ensure that all Government bodies carry out their environmental considerations, it seems with almost 18 months since the announcement of environmental Impact the New South Wales Government has been rather backward in attempting to instigate such a similar policy which is virtually essential for environmental protection. When the Californian Environmental Prctection Act is 69. considered in the light of its definition of 1proposed actions' as including Government decisions which change the existing function of a Government body as having 'significant environ men ta 1 effect' it is rather strange ·tha t the higher levels of the New South Wales Government where the actual environmental Impact policy was introduced, that this level of Government has not appeared to carry out the idea 1 of environmenta 1 Impact after 18 months since its introduction. It would be assumed that if environmental Impact had been accepted by the Government fully that actions of the Government and decisions of the Government would have been envir onmentally considered. This appears to have been overlooked since the 1973 election campaign of the existing in-~ower party of the New South Wales Government put forward a proposal to replace two Government Departments - that of the State Planning Authority and the Department of Environment - with one State Planning and Environmental Ministry. While admitting that this is probably an environmental beneficial effect to the com~unity the decision has not been investigated from the environmental viewpoint, and it would appear that since a ministry that was instigated to concern itself with environmental matters is to be altered drastically, that significant environmental effects would occur, there does not appear to have been a full investigation to determine its full and total consequences in line with envir onmental Impact. It is assumed that the New South Wales Environmental Impact Policy runs very parallel to that of the American policy where the aim of the policy is to put all Government decisions under public scrutiny; certainly litt;e or no release of any evidence of allowing public scrutiny of t~is large decision in replacing Departments has been released. 70. Hence, it is in this light that it does appear thatthe Environmental Impact Policy of the New South Wales Gove·:·nment is only employed as a guard against losing environmental votes while maintaining the support of the more influential votes of big business. If the New South Wales Government is to enact environmental Impact policy as it purported it would 18 months ago, then it would seem necessary to at first set about instig ating an Environmental Quality Act similar to that of A~;~2rica, or at least some single legislation that would bind all Govern ment agencies to enact Environmental Impact. The whole policy of the New South Wales Government revolves around environmental Impact and not environmental quality policy or the setting of standards for environmental quality, and so it seems that the Government is again only taking a small portion of the environmental quality in comparison to that of the American States. One final comment: In the New South Wales Government's environmental Impact policy, and particularly the guidelines released for the application of the Impact policy, concern is for only processes and developments rather than 'actions' being rather restricted. Although it has not been actually defined as s.uch, it does imply that only developments require environ mental Impact {which is contrary to that of the Americans where even decisions, regulations, changes in statutory regulations need to be environmentally impacted). So it would seem, from these few impressions, that the New Soutl1 ~foles Government does appear to be teetering on the point of action a~~ what action that has taken place has been ineffective. The public would be better served if the Government were to be more honest and 71. eliminate the blind of Environmental Impact Policy and just maintain pollution control. Restart environmental procedures by setting up an Environmen~al Quality Act and working from that base, provide a procedure to attain the objectives set out in such Act possibly resulting in a Procedure simi~ar to Environmental Impact. APPENDICES 72. 6. ENVIRONMENTAL IMPACT POLICY Statement of Principles Adopted by N.S.W. St~te Govern~ent 6.01 The State Pollution Control Commission has the task of ensuring through its own Act or any other Act, that all practical measures are taken to control pollution, control the disposal of waste, to pr.otect the environment from harm and to co-ordinate such activities by other public authorities. 6.02 To carry out this task the Commission has the responsibility to set standards or ensure that adequate standards are set and applied. 6.03 The Government's new comprehensive environment policy is made up of two distinct elements: 6.03.1 strengthening the powers and respo~sibilities of individual Ministers and authorities to control pollution and prevent degradation of the environment; 6.03.2 combining the above traditional method of governm2nt administration with a completely new approach based on the "total environment" concept in order to make a comprehensive and co-ordinated attack on these problems. 6.04 In line with this policy, adequate attention must be given in planning a major project to its impact on the environment. 6.05 The responsibility for ensuring the necessary study to deter mine environmental impact is undertaken is one ;or the decision making author_i ty. 6.06 Every such project when approved must include adequate safe guards to prevent pollution and protect the environment. 6.07 Every environmental impact study for a major project must include the fo 11 owing: 73. 6.07. l A statement of the major objective sought by the· proposed project. 6.07.2 An analysis of the technological possibi1ities of achieving the objective. 6.07.3 A statement of the alternative plans considered to be practicai ways of reaching the objective. 6. 07 .4 A statement of the characteristics and conditions of the existing environment prior to implementing the project. 6.07.5 A separate report on each alternative engineering plan considered to be c. practical way of reaching the objective. (These plans ordinarily will have analyses . of monetary benefits and costs.) 6.07.6 For each plan, an assessment of its probable impacts on the existing environment. 6.07.7 A summary or recommendation, which would include the rationale supporting the selected plan. , 6.08 The decision-making authority will continue to utilise the services of other authorities with special expertise or jurisdiction in considering environmental impact. 6.09 The study will be utilised: 6. 09. l by,. the decision-making authority-- (i) in conjunction with economic or other studies in deciding upon the project; (ii) in determining environmental safe-guards to be included in the project; and 6.09.2 by the State Pollution Control Commission in any necessary review of environmental safe-guards; and 6.09.3 by the Premier in considering any dispute. 74. 6.10 The State Pollution Control Commission will ;~or~ally be in volved in major projects only-- 6.10. l where it is required to arbitrate on disputes on the environmental considerations; and/or 6.10.2 where the environmental issues are of major consequence or highly controversial. 6.11 In making its decision, the State Po11ution Control Commission (constituted with a majority of non-government members) will approach the projects from the broad community viewpoint. 6. 12 A common approach by al1 public ~Jthorities to environmental studies would be desirable in view of their mu1tip1e use. In drawing up the detailed assessment of the environmental impacts a standardized procedure is essential. 6.13 In actions of lesser or minor environmental sisnificance, the philosophy embodied in the above statement of principles should extend down to the grass-roots level of Government activity. Issued under the authority of the Hon. Jack G. Beale, M.E., M.L.A., Minister for Environment Control, New South Wales, January, 1972. 75. 30 32 7. STATUTORY AUTHORITIES OF NEW SOUTH v/P:.LES ' 7 .01 Process of Government Many processes of Government take place through the exercise of discretionary powers granted it by parliament to the Executive Government. While it is irr,possible to clarify the powers with any precision, a general though imprecise distinction can still be perceived between legislation, administration and adjudication, though allocation of a particular function to one or other of these categories is often dictated by the nature of the body to which a power is granted. The organs of government are no longer able to be simply cate gorised as legislative, executive or administrative and judicial since new types of government organs have appeared wh~ch simp1y cannot be so classified. Among these are the statutory corpor ations and administrative tribunals. There are initial difficuities defining and classifying these. In some cases the lines which may be drawn between the statutory corporations and traditional departmental bodies are extremely indistinct, and a great deal depends upon the practical relationship between the statutory body and the departmental organisation. In some cases also a stututory corporation may have two faces. Looked at from one point of view it may be regarded primatily as a body established to provide services or to regulate activities in the community; then looked at from another point of view it may be consiG2red as an adminis trative tribunal. The State Public Service Board is a good example. Their prime function is to main.tain efficiency and economy in the public service, a regulatory activity, but in relation to their disciplinary and pro~otional activities they are required to follow judicial type procedures and w.ay be -re garded as administrative tribunals. 76. -7.02 Complexity The present uncontrolled and unsystematic creation and com plexi·ty of the modern administrative structure that exists today resulted in the following quote from Benjafield and Whitmore - "complexity in the rrodern administrative structure is to be expected, but the present uncontrolled and unsystematic creation of ad hoe administrative bodies is leading to a tangled web of overlapping powers and juris diction which is rapidly becoming impos::.;.~::-le to unravel. The overall effect is highly dangerous. There is no expert or group of experts in government or law which is capable of comprehending the full ramifications of this tortured administrative structure. The rights of the citizen are submerged not so much by design as by lack of it. The most the authors can do is to explain the main functions and features giving examples of corporations and tribunals." 7.03 Statutory Corporations Examples of statutory corporations are State Transport Commission, State Banks, and so on. Generally, such bodies can be recognised by their official descriptions as Commissions, Commissioners, Corporations, Councils, Boards and Authorities. Usually, the members of the particular corporation are ~~?ointed by the Governor and are constituted as a legal entity \vhich may hold property, enter into contractural relations and sue and be sued in much the same way as a private company. The range of activities and responsibilities which may be e:.trusted to a 77. statutory corporation is very large. It has been suggested that the functions should be limited to those of a government character, but such a limitation is almost meaningless in modern society. Many of the corporations are engaged in purely commercial activities, and in any event tha assessment of what is government and what is not usually depends on historical accident. In Australia the provision of water, telephone and railway services is regarded as governmental activity; in other countries such activities are regarded as commercial. Hence rigid classification of statutory corporations is clearly impossible, but there are two main groups. First the group of corporation which is entrusted with providing services. In some cases such corporations are re½uired to con duct their affairs as business organisations; in others funds are provided from public revenue or from special rates and taxes, and the body is required to supply specialised services to the public. Second the group is concerned with regulating the activities of the public, private or semi-private organisations; although the lines between them are again indistinct some regulatory authorities are also authorised to provide services. Some service bodies are also entrusted with regulatory powers. Numerous advantages are claimed for statutory corporations over traditional government departments, one being the insulation of the corporation from the traditional ministerial departments frees them from political interference and pressures and permits development of long term policies. However, it is questionable in fact whether the corporations are free from political inter ference as this will depend upon the extent to which the Minister may give directions and controls the purse strings. I~ is 78. questionable whether they should be. However, there are sorr.e other advantages. Most of the corporations oper~~e ~n a special ised area and by appropriate appointment, sometimes on a part-time basis. It is possible to give technical experts and represent atives of sectional interests in the cor:::nunity which are affected a say in 'the running of the affairs of the corporation. So it is common to find producers and retailers represented on ma r: South Wales, the Housing Commission of N2w South Wales, ~he Rura) Reconstruction Board, the Rural Bank and the Railways Commission; there are regulatory bodies, also very numerous, among them the Sydney Cove Redevelopment Authority, a number of marketing boards 79. (eggs, lemon, rice and wines) the Electricity Authority of .New South Wales, the State Planning Authority, and also the State Pollution Control Commission. Appointments are usually made by the Government. Sometimes particular qualifications are required, and sometimes they are not. Powers to remove ·members are included and in some cases parliament can petition for restoration to office. Ministerial control is or can be very comprehensive, and in many cases, as in the example of the Housing Commission, the Hospitals Commission, Electricity Commission and the Railway Corr.missioner and now the State Pollution Control Commission it is p-.-ovided that the corporation shall be subject to all respect to the con trol and ~irection of the Minister. Specific approvals are required for many actions of the Authorities and Annual Reports must be submitted for presentation to parliament. Financial control is asserted generally through parliamentary appropriations, although some trading corporations do not need to rely on appropriations. Treasury control over estimates and '· ' . C, loans and orders by the Auditor General regulations are required to be made by or approved by the Government. Under the control, and in most cases the intention is to retain some degree of ministerial control, by legislative provisions. Whether the (' ministerial control is effective and can be transl~ted into ministerial responsibility to parliament is another question. The probability is that there is a wide variation from corporation to corporation, from Minister to Minister, and from parliament to parliament. No detailed research, of·.-o·:.:·;al or otherwise, has ever been carried out. It is fairly obvious that no Minister could be expected to take responsibility for the day-to-day admin1strative acts of a statutory corporation which is nominally within his 80. sphere of responsibility. 7.04 Financial Control The effectiveness of financial control depends very largely upon whether or not the particular corporation is forced to rely upon parliamentary appropriations and government approval to the raising of loans. Some corporations are self-sufficient as to revenue funds and hence do not need to rely on moneys appropriated by parliament, but government approval is required for the raising of loans. Even control of the corporation can only be exercised by means of the principles and remedies developed to control ministerial actions generally. Where, however, the corporation fails to provide services, and this is the most common complaint, the citizen will usually be without a remedy. Although the corporation is usually placed under a duty to perform certain functions that duty is commonly expressed in such wide terms which could never be used to enforce it. No Court would order the Railways Commissioner to provide railway services, nor the Australian Broadcasting Commission to provide adequate and com prehensive programmes. It can hardly be claimed that a satisfactory solution has been worked out to the problem of controlling statutory corporations in the public interest. Corporations are quite free to disregard the interests of citizens and cannot effectively be restrained by either parliament or the courts. A number of improvements could be suggested, one bei~g the case of an ombudsman or similar device. Tr.e r,1ere presence of such a reviewing authority might do much to curb abuse of pmvers. Summary In summary, if independence of acticr. is required tr.is can be achieved through the statutory corporation but at the cost of loss of effective control with the consequent danger of lack of 81. cohesion and planning which could well resemble the chcas which arose from central control over administrative activities Justices of the Peace vanished with the aboli~ion of star chamber. On the other hand if central control is to be retained there seems little case for using the statutory corporation at all, rather than the ordinary department of Government . . 7.05 Administrative Tribunals It has been stated that many administrative tribunals have advant ages over the ordinary legal system of administrative law. The advantages claimed for such tribunals are cheapness (where cheap ness is an essential ingredient of justice), speed, expert knowledge of the technical matters involved, capacity to give effect to the policies of social improvement witho~t undue restriction arising from common law policies and the doctrine of precedent. The general point made is that for the creation of new standards and such diverse matters as housing, social services, town planning, environment, capacity for work, control of transport, professional and trade discipline and the like greater technical experience, greater flexibility and a greater emphasis on social . welfare are required than ordinary judicial process and tradition allows. However, besides these advantages, or claimed. advantages, there are many features of administrative tribunals that are criticised, one, of course, being the lack of publicity of pro ceedings; also the tendency to give decisions without giving reasons, denial of an oral hearing in some cases, and fear that members of departmental or administrative tribunals are in general committed to a policy to which they are determined to give e/·j=ect regardless of the merits of individual cases, and finally there is often a claim of insufficient training of of/ic·i.:.'!s in adequate fact finding procedures, the general point being made that both 82. the constitution and procedure of administrative tribuna1s are such as to give rise to fears of arbitrariness. 7.06 The Frank's Committee30 In 1955 the United Kingdom parliament established a committee on administrative tribunals and enquiries, is usually knc~n as Frank's committee, to examine the process of ad~inistrative adjudication. This committee came up with several recommen~ations concerning itself in detail with tribunal procedures and recom mendations in this regard. The Committee regarded as basic in all administrative proceedings the principle of 11 fairness, openness and impartiality". From these concepts the committee drew a number of conclusions as to the proper constitution of tribunals, the procedures bef~re, at and after a hearing, and as to appeals and judicial revi~~ genera 1ly. Under the constitution of tribunals the recommendations for appointment were that the committee felt that it was i~r.portant to secure the independence of the personnel of the tribunal from the department concerned with the subject ~4tter of its decision, especially where the department is a frequent party to proceedings before the tribunal. Under qualifications the committee felt that the Chairmen of tribunals should have legal qualifications, and so ordinarily should Chairmen of tribunals in the first instance. Chairmen of tribunals are usually drawn from the ranks of solicitors and barristers; many too are retired co1onia1 or high court judges, while some assessment coirmittees and supplementary benefit ·ci'ibun.::.·.s are still often chaired by professional men 1•1ithc.1t legal qualifi cations. The statement is also made that a tribunal is not genuinely independent if it makes mere recommendations to the 83. Executive or if its decisions are subject to ministerial control or if appeal from its decisions lies with the minister himself and not to an. independent tribunal or ordinary court. This is particularly of interest in the State Pollution Control Commission Act and is worth noting for later reference. Under the general heading of Procedure the Frank 1s corrmittee, while agreeing that procedure was of greatest importance, and that it should be laid down in statutes or in regulations that the Frank's committee felt that a code should not be laid dovm for tribunals generally. It seems that the failure of the committee to recommend adoption of a general procedural code supplemented if necessary by particular requirements for particular tribunals was a fundamental error. Legal practitioners and ordinary members of the public have had no opportunity of becoming familiar with the procedural code for administrative adjudication. It is impossible then for them to assimilate rules which specify detailed procedures differing from tribunal to tribunal. Under the heading of Procedure before Hearings the co~mittee noted that it was essential that the citizen should be aware of and }ully understand his right to apply to a tribunal and therefore steps should be taken to publicise these rights, and it should be possible to obtain legal aid under an official scheme. The citizen should also know in good time the case which he will have to meet, whether the issue to be heard by the tri buni;. 1' is o;-1e between the citizen and administration or between the citize.~ and citizen. To procedure at the hearing. Regarding openness as one of the essential features of the satis factory working of tribunals the Committee recomrr.enC:-.:.:: that proceedings should be in pub"lic in the absence of special c::'cum stances relating to public security, personal ~r.d pro-/2ssional 84. reputation and the like. Parties should have adequate opportunity for attending the hearing and should be entitled to legal repre sentation, although the committee com~ented on the contention that the presence of legal representatives would destroy the i nforma 1i ty of. proceedings it a 1so fe 1t th~ t the ba 1ance of evidence was against such a contention. It was recommended further that the tribunal should have the power to summon witnesses and to administer oaths, and that parties should be entitled to question witnesses directly and not merely through the chairman. It is interesting the committee's recorrrnendation as regards costs in the general principle should be that a successful applicant should always be given a reasonable allowance in respect of his expenses, including travelling and subsistence, allowance for loss of remunerative time, together with an allowance for the cost of legal representation where the tribunal is satisfied that representation was reasonable should also be included. Tribunals wi~l not, in the committee's opinion, be truly accessible to the absence of such a1101t1ances, but equally they shoulci nev2r have to be paid by an unsuccessful applicant who should be en titled to the same reasonable allowances in respect of his expe~ses. The committee did not feel however that public funds should be employed where the dispute arises between private parties. 7.07 Procedure After Hearing If tribunal proceedings are to be fair to the citizen reasons should be given to the fullest practical extent. The requirement that a reason decision shall be given means that greater care is likely to be given to its preparation and the unsuccessful applicant is better able to asses~ whether he has grounds for appeal. As soon as possible after the hearing the tribunal should 85. send to the parties a written notice of decision containing not only the actual decision but also the facts _.,;, ... by the tribunal in a statement of its reasons. The notice should also state any right of ap!Jeal. Finally appelate tribunals should publish selected decisions and circulate them to lower tribunals. 7.08 To Conclude It is fair to say that tribunals in Australia are the result of ad hoe decisions, political circumstances and historical acc1dent, this being a quote from the report of the co~mittee on adminis trative tribunals and enquiries in 1957. No inherent principles have as yet emerged to go in their constitution procedures and relationships with the central administration in the courts. However, there a re two quite ·different types of tribunals noi·1 in operation in Australia. First is the independent tribur.al to which the Frank's Comnittee standard can be applied, and second there is the tribunal which can only be regarded as an integral part of administration. Examples of independent types of tribunals ~re Taxation Boards of Review of the Commonwealth, the Crown Employees• Appeals Board in New South Wales, the Local Govern~ent Boards and the Local Land Boards, while tribunals within the administration examples would be the Workers' Compensation Commission, the Corrrnonwealth Tariff Board. 86. . 31 8. ALPHABETiCAL LIST OF STATUTORY BODIES OF NE\>/ SOUTH \•!AlcS AT SEPTEMBER 1972 ·B.01 Aboriginal Relics Advisory Committee 8.02 Aborigines Advisory Council 8.03 Advisory Conmittees under Section 26 of Sydney Cove Redevelopment Authority Act 1968 8.04 Air Pollution Advisory Committee · 8.05 Ambulance Transport Service Board of N.S.W. 8.06 Apprenticeship Commissioner 8.07 Apprenticeship Council of N.S.W. 8.08 Architects: Board of Architects qf N.S.W. 8. 09 Archives Authority of N.S. vJ. 8.10 Argentine Ant Eradication Corrmittee 8.11 Art Gallery: Trustees of The Art Gallery of N.SJ,J. 8.12 Assessment Boards 8.13 Auctioneers: Council of The Auctioneers, St~.:::( and Station Agents, Real Estate Agents and Business Agents 8.14 Auditor-General 8.15 Australian Museum, Trustees 8.16 Banana Marketing Control Corrmission 8.17 Barristers Admission Board 8.18 Benevolent Society of N.S.W., Board of Directors of 8.19 Boiler Inspectors Board of Reference 8.20 Bookmakers Revision Corrmittee 8.21 Bread Industry Advisory Committee 8.22 Broken Hill Water Board 8.23 Builders Licencing Board 8.24 Bursary Endowment Board 8.25 Bush Fire Corn.ittee 8.26 Bush Fire Council of N.S.W. 87. 8.27 Bush Fire Council of N,S,W,, Co-ordinating Commit:ee of 8.28 Bush Fire Council of N.S,W., Finance Committee of 8.29 Cancer Investigation Committee 8.30 Catchment Areas Protection Board 8.31 C. B. Alexander Foundation 8.32 Central Coast (N.S.W.) Citrus Marketing Board 8.33 Charity Referees 8.34 Child Welfare Advisory Council 8.35 Chiropodists Registration Board 8.36 Citrus Fruits (excluding lemons) Marketing Board 8.37 Clean Waters Advisory Committee 8.38 Clean Waters Appeal Board 8.39 Closer Settlement Advisory Boards 8.40 Coal and Oil Shale Mine Workers Superannuation Tribunal 8.41 Coal Mining Qualifications Board 8.42 Cobar Water Board 8.43 Corrmons, Trustees of 8.44 Companies Auditors Board 8.45 Conciliation Commissioners 8.46 Conservation Authority of N.S.W. 8.47 Consultative Cowmittee on Leucotomy 8.48 Consumer Affairs Council 8.49 Co-Operative Building Advisory Committee 8.50 Co-Operative Societies Advisory Council 8.51 Corporate Affairs Commission 8.52 Council of Law Reporting 8.53 Country Board of Appeal (And Appeal Panel) 8.54 Credit Union Advisory Committee 8.55 Crown Employees Appeal Board 8.56 Cumberland, Newcastle and Wo1~ongong Board of A;p2al 88. 8.57 Dairy Industry Artificial Breeding Advisory Board 8.58 Dairy Industry Authority 8.59 Dairy Industry Prices Tribunal 8.60 Dairy Produce Factories Advisory Corr.mittee · 8.61 Dental Board 8.62 Dentists Charges Committee 8.63 Development Corporation of N.S.W. 8.64 Dingo Destruction Boards 8.65 Dormant Funds, Commission of 8.66 Dumaresq-Barwon Border Rivers Commission 8.67 Egg Marketing Board of N.S.W. 8. 68 El ecto ra l Commissioner 8.69 Electoral Districts Commissioners 8.70 Electrical Approvals Advisory Committee 8.71 Electrical Contractors and Electricians Licensing Advisory Committee c 8.72 Electricity Authority of N.S.H~ 8.73 Electricity Com~ission Appeal Board 8.74 Electricity Co~mission of N.S.W. 8.75 Engine Drivers and Boiler Attendants Examination Board 8.76 Engine Drivers, Board of Examiners of 8.77 Examining Medical Committee 8.78 Factory and Industrial Welfare Board 8. 79 Fair Rents Boards 8.80 Farrer Memorial Research Scholarship Fund Trustees 8.81 Fire Brigades Act, Appeal Committe2s Under S.40A 8.82 Fire Commissioners of N.S.W., Board of 8.83 Fish River Water Supply, Administrator of 8.84 Fluoridation of Public Water Supplies Advisory Corr:r..~ttee 8.85 Forestry Corrrnission of N.S.W. 89. 8.86 Geographical Names Board of N.S.W. 8.87 Government Insurance Act 1927-1943, Corrmittee Under S. 15 8.88 Government Insurance Office of N.S.W. 8.89 Government Transport, Commissioner of 8.90 Grain Elevators Board of N.S.W. 8.91 Grain Sorgham Marketing Board 8.92 Greyhound Racing Control Board 8. 93 Ha.i rdressers Council 8.94 Health, Board of 8.95 Height of Building Advisory Committee 8.96 Horse Breeding Act, Appeal Board Constituted Under 8.97 Hospitals Commission of N.S.W. 8.98 Hunter District Water Board 8.99 Hunter Valley Conservation Trust 8.100 Hunter Valley Flood Mitigation Assessment Board 8.101 Income Tax Management Act, Board Constituted Under S.330 8.102 Industrial Corrmission of N.S.W. 8.103 Inebriates Act Supervising Board 8.104 Insurance Premiums Committee 8.105 Joint Coal Board 8.106 Junee Water Supply, Administrator of 8.107 King George V and Queen Mary Maternal and Infant Welfare Foundation 8.108 Land Tax Commissioner 8. l 09 Law Reform Commission 8. 110 Law Society, Council of 8. 111 Lemon Marketing Board of N.S.W. 8. 112 Library Board of N.S.W. 8. 113 Library of N.S.W., Council of 8.114 Licences Reduction Board 90. 8.115 Liquefied Petroleum Gas Installers' Licensing Cornmittee 8.116 Local Comnittees (National Parks and Wildlife) 8.117 Local Government Appeals Tribunal 8.118 Local Government Boundaries Commission (and Panel) 8. 119 Local Government Building Inspectors' Q~a1if~cation Co~mittee 8. 120 Loca 1 Government Clerks and Audi tars I Examination Comm~ t·::2e 8.121 Local Government Electrical Engineering Exami~ation Committee 8.122 Local Government Engineering Examination Committee 8.123 Local Government Gas Engineering Examination Com~ittee 8. 124 Local Government Grants Com~ission (and Pane1) 8.125 Local Government Health Inspectors' Examination Committee 8.126 Local Government Superannuation Board 8.127 Local Government Town and Country Planning Examination Committee 8.128 Local Government Valuers' Committee 8.129 Local Land Boards 8.130 Lord Howe Island Board 8.131 McGarvie Smith Institute Trustees 8.132 Macquarie University, Council of 8. 133 Main Road, Co~missioner for ' 8.134 Managers, Board of Examiners of 8.135 Maritime Services Board of N.S.W. 8.136 Master in Equity 8.137 Master in· the Protective Jurisdiction of the Supreme Court 8.138 Medical Authority - Workers' Compensation (Dust Diseases),.;:;·:: 8.139 Medical Authority - vJorkmen I s Comp en sat ion (Broken Hill) Act 8.140 Medical Practitioners Charges Corr,;:,i ttee 8.141 Medical Practitioners Disciplinary Tribunal 8. 142 Medical Practitioners I nves ti_ga ting Committee 8.143 Mental Health Tribunals 8.144 Metropolitan Meat Industry Board 91. 8.145 Metropolitan Waste Disposal Autho~ity 8.146 Metropolitan Water, Sewerage and Drainage Board 8.147 Milk Board 8. 148 Mine Subsidence Board 8. 149 Mines Rescue Board 8.150 Mitchell College of Advanced Education 8.151 Motor Transport, Commissioner for 8.152 Museum of Applied Arts and Sciences, Trustees of 8.153 National Fitness Council of N.S.W. 8.154 National Literature Board of Review 8.155 National or State Parks or Historic Sites, Trustees of 8.156 National Parks Advisory Committee of Architects 8.157 National Parks and Wildlife Advisory Council 8.158 National Parks and Wildlife Service 8.159 National Relief Board of N.S.W. 8.160 National Trust of Austra1ia (N.S.W.) 8.161 N.S.W. Advanced Education Board 8.162 N.S.W. Advanced Education Board Committees 8.163 N.S.W. Apprenticeship Council 8.164 N.S.W. Dairy Products Board 8.165 N.S.W. Dried Fruits Board 8.166 N.S.W. Fish Authority 8.167 N.S.W. Higher Education Authority 8.168 N.S.W. Institute of Psychiatry 8.169 N.S.W. Meat Industry Authority 8.170 N.S.W. Medical Board 8.171 N.S.W. State Cancer Council 8.172 N.S.W. State Conservatorium of ~usic: Board of Governors 8.173 N.S.W. Technical Education Advisory Council 8.174 N.S.W. Universities Board 92. 8. 175 N.S.W. Universities Board Committees 8.176 N.S.W. .Vocational Instruction Advise::' Corr::ni ttee 8.177 Nominal Defendant 8.178 Nurses Registration Board 8.179 Official Visitors 8.180 Opti ea l Dispensers Licensing Board 8.181 Optometrical Registration, Board of 8. 182 Parking Advisory Committees 8. 183 Parliamentary Contributory Superannuation Fund Trustee 8.184 Parole Board . 8. 185 Pastures Protection Boards 8.186 Pharmacy Board of N.S.W. 8.187 Physiotherapists Registration Board 8.188 Poisons Advisory Committee 8.189 Police, Commissioner of 8.190 Police Superannuation and Reward Fund Board 8.191 Port Kembla Advisory Co~mittee 8.192 Port of Newcastle Advisory Committee 8. 193 Prices Commissioner 8.194 Prickly-Pear Destruction Commission 8.195 Prince Henry Hospital, Board of Directors 8.196 Prince of Wales Hospital, Board of Directors 8.197 Public Accountants Registration Board 8.198 Public Defenders 8.199 Public Parks, Trustees of 8.200 Public Reserves or Dedications, Trustees of 8.201 Public Service Board 8.202 Public Trustee 8.203 Pure Food Advisory Committee 8.204 Radiological Advisory Council 93. 8.205 Railways, Commissioner for 8.206 Railways Appeal Board 8.207 Railways Retirement Fund Board 8.208 Railway· Services Superannuation Board 8.209 Rent Controller 8.210 Retail Trade Advisory Committee 8.211 Rice Marketing Board of N.S.W. 8.212 River and Foreshores Improvement Board 8.213 River Murray Commission 8.214 Royal North Shore Hospital of Sydney, Board of Directors 8.215 Royal Prince Alfred Hospital, Board of Directors 8.216 Rural Assistance Board ·8.217 Rural Bank of ·N.S.W,, Commissioners of 8.218 Rural Reconstruction Board 8.219 Rural ~lorkers' Accorrm10dation Advisory Committee 8.220 Secondary School Studies, Board of 8.221 Secondary Schools Board 8.222 Senior School Studies, Board of 8.223 Soil Conservation Service 8.224 Solicitor General 8.225 Solicitors' Admission Board 8.226 Solicitors' Statutory Committee 8.227 South West Tablelands Water Supply; Administrator of 8.228 Special (Arbitration) Commissioners 8.229 Stamp Duties, Com~issioner of 8.230 State Advisory Corrmittee on Publications 8.231 State Brickworks 8.232 State Dockyard Board of N.S.W. 8.233 State Lotteries, Director of 8.234 State Mines Control Authority 94. 8.235 State Planning Authority 8.236 State Pollution Control Commission 8.237 State Superannuation Board 8.238 Stock Medicines Board 8.239 Subdivision Appeals, Board of (and Panel) 8.240 Superannuation Tribunal 8.241 Surveyors, Board of Surveyors of N,S.W, 8.242 Sydney County Council 8.243 Sydney Cove Redevelopment Authority 8.244 Sydney Cricket and Sports Ground, Ttustees of 8.245 Sydney Farm Produce Market Authority 8.246 Sydney Harbour Transport Board 8.247 Sydney Hospital, Board of Directors 8.248 Sydney Opera House Trust 8.249 Taree-Wingham Water Supp1J Board of Management 8.250 Taronga Zoological Park, Trustees of 8.251 Taxation, Commissioner of 8.252 Teacher Education, Board of 8.253 Technical Advisory Committee (Pollution Control} 8.254 Technical Education Advisory Council 8.255 Theatres and Films Com�ission 8.256 Tick Control, Board of 8.257 Tobacco Leaf Marketing Board 8.258 Totalizator Agency Board 8.259 Traffic Safety Council 8.260 Transport Appeal Court 8.261 Transport Retirement Board 8.262 Transport Services Appeal Board 8.263 United Dental Hospital of Sydney 8.264 University of Ne't1cast1e, Council of 95. 8.265 University of New England, Council of 8.266 University of New South Wales, Council of 8.267 University of Sydney, Senate of 8.268 Valuation Board of Review (and Panel) 8.269 Valuer General 8.270 Veterinary Surgeons of N.S.W., Board of 8.271 War Service Land Settlement Boards 8.272 War Service Land Settlement Classification Committee 8.273 Water Act, Board Constituted Under S.30 8.274 Water Conservation and Irrigation Commission 8.275 West Scholarship Scheme Trustees 8.276 vJestern Lands Commission 8.277 \~heat Quota Review Committee 8.278 Wild Dog Destruction Board 8.279 Wine Grapes Marketing Board for Shires of Leeton, vJade and Carrathool 8.280 Workers' Compensation Commission 8.281 Workers' Compensation (Dust Diseases) Board CoflTilittee 8.282 Workmen's Cqrnpensation (Broken Hili) Act - Joint Committee 8.283 \~orkmen 's Compensation (Lead Pojsoning-Broken Hill) Act Medical Board Constituted Under 96. 30. 32 9. LOCAL GOVERNMENT - A STATUTORY AUTHORITY 9.01 Management Although Local Government in Australia is broadly mode11ed on English 1avJS there a re marked diff erer.ces to them in their. attitude towards Loca 1 Government and the powers wei l C:ed by local government authorities. Powers over such matters as police, housing, education, highways, water supply and sevJerage have generally been retained by centra 1 government in J..us tra 1i a vJhereas they have traditionally been exercised by local authorities in the United Kingdom. Nevertheless many important powers so far as the ordinary citizen is concerned are in Australia conferred on local government bodies and many of the leading administrative law cases are concerned with local government matters. In all States local government areas are established by statute and in New South Wales the basic areas are categorised as cities, municipalities and shires, although provision may be rr.ade . smaller sub-divisions and for the combination of basic areas for special purposes. The municipalities, shir2s and cities and so on are legal entities known as bodies corporate; also elaborate provisions are made for the alteration of local government areas, usually by the Government. 9.02 Elections and Council Structlre The local government areas are governed by elected Councils. The members of the Council are usually known as aldermen, and those of shires and counties as Councillors. A chairman is elected to preside over the meetings of Council. He is usually called Mayor, President, Chairman or Warden. Executive power is vested in the Councils but day-to-day administration is carried out by a permanent staff of engineers, surveyors, heaL.:·. inspectors, clerks under the direction of a Town et Shire Clak or Secretary. Councils 97. are generally responsible for the administration of local affairs within their areas. Costs are m2t from rates, government grants, profits from trading undertakings and charges made for services and licences. Capital expenditures are met from loans which are controlled and allocated by the local Council and by the Loan Council and the State Government. 9.03 Power A wide variety of powers is conferred on the Councils by the Local Government Act and by general legislation concerned with roads, public health and town and country plann~ng. Local Councils possess wide powers to control the erection, ~1terations to and conditions of buildings in their areas. It is corrmonly provided that no person shall construct or alter buildings without the consent of the Council and plans are required to be submitted for approval. There is also provision for administrative tribunal appeal for those persons aggrieved by Council's decis·ion. Where buildings are allowed to fall into dilapidated, unsightly or dangerous conditions Councils are empowered to order repairs or demolition. Generally, Councils have extremely wide powers to control the use of inflarrmable or dangerous materials, the erection of fences and hoardings, and even to some extent the use to which buildings may be put. Powers also exist to control the private sub-division of land for building and other purposes, and appeals against councils' decisions lie in an administrative tribunal. Generally Council is empowered to impose conditions on sub-dividers such as pro vision for roads, services, recreational areas, anci also particular sized parcels in the sub-division. The powers of iocal au'.:horities which most affect the rights of the individual citizen :; do as he wishes with his own property a re those whi eh have been c;-- ..:.a ted by 98. town and country planning legislaticn. Such powers may range from the requesting of proc1ar.:ation of residential districts to preRaration and enforcement of compre hensive schemes of the type which are now emerging i;---, New Sout:': Wales. Elaborate procedures are requir2d for the making of ;1ans. Normally plans must be submi~ted and objections must be received and determined, and final approval must be obtained from the appropriate Minister - in this case, the Minister for Local Government. Once an approved plan is in operation the owner will commonly be prohibited from certain uses of land and required to seek approval to other uses. 9.04 Appeal In some cases an appeal against refusal of approval or against approval given subject to unacceptable conditions will again lie in the hands of the Minister, but in most cases the appeal lies in the Land and Valuation Court of New South Wales. New South Wales also has a general supervisory and advisory service known as the State Planning Authority v1hich holds or is responsible for pro~Dting and co-ordinating town and country planning. It is required to submit proposals to the Minister for development and use of land, to carry out research and ·..;o advise councils and to consider matters referred to by the Minister. 9.05 Health Wide powers are conferred on local government authorities by the Local Government and Health Acts to take action to preserve public health in their areas. Included are general powers to contra: and regulate sewerage and drainage works, to ensure th~t areas a;id premises are maintained in a sanitary condition, order the closure or repair of unhealthy premises, to suppress public nui~ances and control noxious trades. Duties to control infectious diseases, 99. the purity of food and v:~ter supplies and the condition of premises in which food is served, are generally shared between local and central government authorities. 9.06 Public Works Finally, Councils have various miscellaneous powers. Usually Counci1s"are empowered to construct, maintain, control and manage streets and roads within the Council area. Also they are entrusted with the care and management of beaches, park? and other public reserves, and they may provide all manner of public services, baths, drinking fc~ntains, clocks, public toilets, tourist facilities, hostels, maternal and child welfare centres, libraries and so o~. They also may regulate such matters as par:dng, advertisements and hoardings, private streets, straying dogs and cemeteries, such that the day-to-day life of the ordinary cit·:zen is controlled to a far greater extent through local government law than through any other source of law. And furthermore the greater majority of powers of local government authorities are pure discretiona:--~ 1 • 100. l 0. STATE POLLUTION CONTROL corv::1ir SS ION ACT 10.01 Origin and Administration The development of a State Pollution Control Comnission can b2 1 traced to 1970 when, on the 12th May, an English iaste Disposal consultant submitted a report on his findings from an investigation into waste disposal in the Sydney rr.2tropolitan area. This 1t:as requested·by the State Government at the beginning of t~at year. The instruction for the investigation from the Cabinet Sub Corrmittee was - "Investigate and report on all aspects of the critical problem of industrial waste disposal ' currently confronting metropolitan Sy5-,< and the urban areas adjoining it, and in the light of his professional training and experience to recommend to the Governr..ent of Ne.-1 South vlales - (a) measures to be taken to relieve the ililJTlediate pxoblems, and (b) measures which should be taken to prepare for and organise a com- prehensive and co-ordinated approach to the overall problem of waste disposal and pollution control in the future." This Sub-committee consisted of New South ~Ja 1es Cabinet members and selected outside people - Mr. Fuller,* then Minister for Decentralisation and Development (Convenor), Mr. Hughes, the~ * Mr. Fuller has now been ap~oint2j the Minister for the new Minis try of Planning and Environment of the returned Li berc. 1 Government at the 1973 State Election. 101. Minister for Public Works, Mr. Morton, Minister for :..;:,c-.:.1 Government and Highways, Mr. Jago, then Minister for Health, as well as the President of the Metropolitan Water Sewerage and Drainage Board, Mr. Halder, along with other Senior Dep2.rtm2ntal Officers received the Consultant's report containing two signifi cant recommendations - "l. Strong pressure by law and education be brought to bear on all industries to reduce pollution. 0 2. Pressure should be applied at the point where pollution is produced if any scheme is to be effective. " After suitable deliberation by the Sub-committee of this Consult ant's recorrrnendations, and further woi"k and discussions with i Cabinet, a press statement was _released by the Premier on the 2 28th July, 1970, naming the Cabinet Sub-committee and stating that Cabinet had decided to prepare legislation immediately to set ~p a State Pollution Control Authority fo11oi'Jing recommendations by this Sub-corrmittee. The aim in establishing an Authority was to co-ordinate and attack pollution in all its forms vigorously. The proposed Authority was to be responsible to the Premier and would be given full powers to set standards, provide technical expertise and generally exerc.ise control over an forms of po11ution control, and the implementation of all pollution control legislation. At the same time it was intended to provide profession~l advice and guidance to Government Departments, Local Government ..._;-;d industr;. Cabinet also decided to prepare legislation to establish a Sydney Metropolitan Regional Waste Disposal Authority which wcu1d be res ponsible to the Minister for Local Government and v,o~1d assume responsibility for all i'Jaste disposal services subject-~.:: the requirements of the State Pollution Control Authority, and provide 102. the establishment of such regional waste disposal autho:,·:ti2s as may be found necessary elsewhere in the State. (However, the responsibility for collecting all waste would remain \vith L.:cal Government, as it was at present.) The press statement added that v,here necessary industry v;ould be required to find the cost of providing the plant to adequately treat waste before disposal. "The Government recognises the need to attack pollution at its source and to control waste from its point of origin through to its ultimate treatment and disposal, and to do this in as comprehensive and energetic v1ay as possible." It was intended that the State Pollution Control Authority be widely represented by Government, Local Government and industry, 3 and a week later, on the 5th August, 1970, another press statement by the Premier stated that besides the Authority determining policy, setting standards and generally overseeing all forms of pollution control, as previously stated, that it would also have power to engage in and commission research, co-opt the services of departmental officers in par·~icular matters and to direct regional waste authorities. AND "In rrore detail it is envisaged that the Aut1:ori ty will employ a small specialised staff to do all things previously mentioned and provide specialised , guidance and advisory technical services to regio:2al and Local Government bodies and industry as required. Because of its co-ordinating and supervisory role membership of the Authority will be centred towards management, and to enable it to have readily available appropriate technical information it will be supported by a technical advisory com:ii ttee." 103. The results were the St&te Pollution Control Corrrnission Act of 1970 receiving Royal Assent on December 9, 1970, the Cle&n ::-ters 33 Act of 1970, and the Metropolitan l~aste Disposal Jl.uthority fa.et, 1970. January, 1971, saw the commencement of a State Election ye2.r along with the public outcry over a mining proposal by Clutha D2velopment to install coal storage facilities near Madden 1 s Plain in the Illawarra District. On January 28 of that year the Premier of New South ':':: es and Leader of the State Liberal Party, the Honourable R.\~. Askin, 4. M.L.A., presented the Government's policy speech for the coming election and publicly announced that a nevJ Ministry would be formed with the appointment of a full-time Minister for Environ mental Control answerable only to the Premier, and that other Ministers, whose Departments dealt with some facet of pollution would be required to give the new Ministry every co-operaticn. Following on from this election co~mitment by the Premier, and subsequent return of the Government on the 13th March, 1971, the first Minister for Environmental Control v,as com:nissioned and the State Pollution Control Commission Act, 1970, placed under that Minister's administration, and a Department of Environment was established as well as the State Pollution Control Commission to act as an advisory body to the Minister. 10.02 State Pollution Control Commission Act. No. 1970 Environmental legislation in New South Wales is under various Ministries which are listed. In an attemp~ to centr~~ise and co-ordinate these Acts, the State Pollution Control Coif.mission Act provides the capacity and capabi 1ity of altering a 11 othe:-- Acts where conflict occurs (except the prevention of oil pollution 104. of navigable waters Act) although this Act is administered under the authority of the one Minister for Environ.r.2nt Control (th2 only Act applicable to that Ministry.) Being the only .' ..:t LlnC:er the Environment Ministry it is \1orthwhile to closely examir.2 this Act to comprehend its powers and, therefore, those (statutcry) of the Minister. l 0. 02. l Responsibilities, Powers, Authorities, Duties and Functions of th2 Commission The Commission is charged generally with the responsi bility for - l 0. 02. l. l Practical Undertaking Ensuring that al1 practical measures are taken in accordance with the State Pollution ContrJl Corrnni ssion Act or any other. Act to prevent, C~ ·.".:rol, abate or mitigate the pollution of the environment; to control or regulate the disposal of \':aste; to protect the environment from defacement,cefilement or deterioration. l O. 02. l. 2 Co-ordination Co-ordinating the activities of all public Author ities in New South Wales. lo. 02. l. 3 Enquiries into Effectiveness of Measures Enquiring into and reporting to the ~inister on the efficiency of measures so taken, and the adequacy and effectiveness of inspect-:ons ri~ade in that respect and the steps which might be taken to remedy efficiency in making the inspection. l 0. 02. l.4 Guidance Providing and encouraging cevelopmer.t of specialised guidance and a technical advisory service in reiation 105. to the functions referred ~o ir. Pr2ctical Under takings. In particular the Commission (S.13) may onl'I on the recom.2ndation and ccncurrence of the Technical Advisory Committe2 (T.A.C.) and from time to time: (i) Order ac"i:i on to be taken: By order directing any public authority to do anything within the powers of that authority which wiil in the opinion of the Commission contribute to the atta~ning of the aims referred to in "(a) Practical Undertaking". {ii) Order Action to cease: By order directing any public Authority to cease coing any thing .which in the opinion of the Commission causes, contributes or tends to lead to the pollution of the environment or the de7ace ment, defiiement or the deterioration of the environment. 10.02.2 The State Pollution Control Commission Act's Jurisdiction Genera 1ly C " .~ ,, The Act binds the Crown and hence any Ne\'I South \~ales body, but would probably have no jurisdictic;-1 over another State body or Commonwealth .body; also provisions do not prevail over any Feder~~ Act or legislation in the iame subject matter (as per Section 109 of the F2.:.:_:-al Constitution). The provisions of the Act prevai1 over any inconsistent provision of any other Act, any ordinance or bylaw made in any other Act (other than the Prevention of Oil Po 11 uti on of Na vi gab 1e \1a ters Act, 106. 1960). It does not make orders issued by the Co~mission paramount over other Acts, Regulations or Ordinances. Hence it would be difficult to add new R2gu:a~ions to other Acts (which do not have ar.y conflict 1·1i·~:1 in consistence) by use of the State Pollution Cantrel Conrnission Act "For example, it would be diffic-.i.l t to include in the Clean Air Act pro visions for car emission standards where car effdssions had not been in- eluded in the Clean Air Act prc.:viously." This provision of any Regu;ations made ~nder the State Pollution Control Commission Act pre·:ail·:ng over any other Regulation is to enable it to usurp and hence co-ordinate any function by any other statutory body acting under its Act or Regulation. However, the full duties of the Commission need to be set out mo:·~ ful1y in the Regulations and Ordir.ances. Thus this Section of the State Pollution Control Commission Act appears only to be a statement of general policy, possibly to encourage public bodies to respect any reco;r,mendations or proposals put up by the Commission. Actual power to carry out the policy may be created for the Commission possibly without T.A.C. concurrence or recommendation using various Sections. (1) Under Section ~4 where if another ~inister agrees to amend his Act or Regulations after being informed by the Corrmission that tr,e Minister's Act should Je amended or Regul~tions relatir.g to pollution should be made or re- 107. pealed, then substitution may be made without the recorr.nendation or concurrence of any oth-.=r person or body; or (2) Under Section 15 where the M��is��r for Environment Control persuades parliament to amend his Act to give it more positive powers to amend other Acts or make Regulations; and ( 3) Section 32 where Regulations a re made by t'.1e Governor at the request of the Mi�ister. 10.02.3 Function Another part of the Act of interest is Section 12 which defines the general powers of the Commission and its general duties. It lays out the Department and assistance on how to deal with other bodies and also h�s provision for what is formuiated for the Commission whi eh is - (a) it is envisaged that the Comrnission form:.iiate its plan for pollution control; (b) to carry out services and investigations to ascertain whether its plans are fe�sible and necessary, and whet:·:::r its views are correct; (c) to carry out research into the best way of tackling the problems so that the Commission can say that it has coi1sid2r2c the problems, the potential answers, the CJ�:�, ��e effects, etc., and so be in a position to state that its decisions are correct, and it is the authority on the methods to tackle the pollution problem; and 103. (d) to act and move to actuaily overco~2 the proble~ by consulting with and arranging with the public a~thority concerned for that authority to implement the particular solution worked out by the Comm~ssion. 10.02.4 Disputes This brings us to the final and most important part of the Act, and that is the problem of disputes between the State Pollution Control Commission and any public authority. This consideration is included in Section 13 of the Act which is broken up into two parts, one being the consideration of a disp~te with a pujlic a..1thori ty not being a 1 oca 1 Council and has severa 1 provisions - 10.02.4. lA If the Authority refuses to co-operate t:·.2 Commission would then with the concurrence or recom~2ndation of the T.A.C. by order direct the public Author~ty to carry out the Co~mission's request. This order would probably be a formal letter from the Director. 10. 02. 4. 1 B Refusal of acceotance of Decis~o~ If the public Authroity refused to abide by the order there is·a dispute for the Premier to decide. Here conflict could occur. A decision between Departments and Ministers would, by having the Premier resolve the situation, result in the po~si bility of a political type decision. So it could be possible that a small but politically active group could greatly influence the final decision of the Premier, there be~~; ~o provision for ap~eal. This ultimate course of action, since no prov~sion 109. of appeal is contained in the Act, would seem to contradict the whole a~~ of environmental legis- lation which requires an unemotional assessment of the situations. . . 7 • TneI p rem1er • I s ~ec1s1on,.J • • • 1s r1~~ l dan • b • mus~ e 1mp.e~2~~~a. At first it would seem strange thc.t there is r.o c.·:=orce ment machinery for failure to follow i..;::, the Premier's decision. Legally it would probably be impossible to force a public Authority to obey the Prer;-iier's dec-:sion, ·but the obvious practical solution to enfcrce~ent is the political aspect. The Premier cc~ld direct th2 dis obedient Minister or Department to comply or resign frcm that Ministry with the Department head ::-:oved 21se.1r.2re. 10.02.4.2 Disoute with Local Government The same solution is not available with Local Government because the Minister fc:' Locai Govert: ment has not full control over local Councils, and the local Councils ar~ elected free of State Govern ment influence. Hence heads of local Councils cannot be moved ~y the State, a~d so the Premi2: has no direct control. Thus a further provision is included that in the ev2~t of the Premier deciding against a Council the Commission could act in the place of the Council and do all necessary actions and recoup expenses from the Council. However, if the Council is in the act of polluting by defile~ent, deterioration or degradation of the environlilent it is difficult to see what the Com~ission could do if the Premier's decision is not c.:.:rried o~t b~1 Cour,ci l, although action has beon taken against a Council who 110. was regarded as polluting the environment by the Corm1i ss ion taking o:.it a court c:--der on that Cot.mcil 's administrative he~d a~d ~ayor orderi~; , ~ ~o cease the action immediately ~~d this ::der was co~;l~ed with. There would seem to b2 so~ne ability for action along these lines even if those two peop1e on whom the court orders were issued resig~ed, the Commission would th2n need only to obtain a second court order issued on those tv:o peop1e's deputies. Hence, there is some provision whereby the Com~ission can act out the Premier's decis~o~, or rather enforce the Premier's decisic~. 10.03 Environmental Impact Policy and State Pollution Cor,trol Corr::r1ission Act The Environmental Impact Policy of New South Wales has been placed. under the jurisdiction of the Minister for Environment Control and so to be legally binding needs to be enforced by Acts under that Ministry. Since the State Pollution Control Commission Act is the only Act for the Environment Control Ministry it would need to be required (by that Act. But the policy was inaug~rated by the Minister without the con currence of the T.A.C. or its recommendation and thus cannot Je required ~nder that Act until this occurs or an action taken pre viously mentioned which could avoid tr:~s concurrence. (Regulations, agreement with other Ministers to change his Act, etc.) 111. 28 11. P.DMINISTERH/S P,UTHORITIES rOR. T~E E:i'-/IROi({:NTP.'... LEGISL;.-:o:: c:= ~-cvl SOUTH \•/ALtS 11.01 Pollution Control Measu~es in G2ner~l Relevant Laws JL;·~ sC:7 c·:-.: '"'·r The State Pollution Control Commission S.P.C.C. Act, 1970. 11.02 Air Pollution The Clean Air Act, 1961. H. C. & L.G.A. Port Authority - Smoke Control Regs. M.S.3. N.S.W. under Maritime Services Act 1935-1966. Local Government Act, 1919. L.G.A. Regulations under Motor Traffic Act, p. D. & 1909. D.M.T. 11.03 Water Pollu~ion Maritime Services Act 1935-1966 & M.S.B. Regs. Prevention of Oil Pollution of ... S. B. Navigable Waters Act, 1960. Th2 Metropolitan Water, Sewerage & M.\~.S. & Drainage Act 1924. D.B. The Hunter District Water, Sewerage H.D.W.B. & Drainage Act, 1938. The Local Government Act, 1919. L.G.A. The Water Act, 1912-1966. W.C.I.C. Fisheries &Oyster Farms Act, 1935. C.S.D. The Irrigation Act, 1912-1968. W.C.i.C. The Went\vorth Irrigation Act, 1890. \,! • C. I . C. The Hay Irrigati.on Act, 1902. vJ.C.I.C. The Rivers and Foreshores Improvement Act, 1948-1955. The Public Health Act, 1902. L.G.A. Permits under Petroleum (Submerged Lands) M.D. Act, 1967. Clean Waters Act, 1970. H.C. 112. 11.04 Waste Disposal Relevant Laws Jurisciction The Waste Disposal Act, 1970. M.l'J.D.A. The Local Government Act, 1919. L.G.A. 11 .05 Noise Pollutio~ The Local Government Act, 1919. L.G.A. Motor Traffic Act, 1909. P.O. Factories, Shops & Ir.dustries Act, F.I.'.. -. 1962-1964. Summary Offences Act, 1970. P.O. 11.06 Noxious Trades Noxious Trades Act, 1902-1944. L.G.A., p .D.; H.C. 11.07 Pollution By Radioactivity Radioactive Substances Act, 1957. H.C. Clean Waters Act, 1970. H.C. 11.08 Agriculture Pest Destroyers Act, 1945. A.O. Cattle Slaughtering & Diseased L.G.A. Animals &Meat Act, 1902-1957 P.O. (Country areas) Meat Industry M.M.I.B. Act, 1915-1952 (Sydney). Meat Industry Authority Act> i970. M.I.A. Pastures Protection Act, 1934-1966. P.P.B. 11.09 Conservation of Nature Fauna Protection Act, 1948. N.P. \·!.S. National Parks & Wildlife Act, 1967. N.P. W.S. Forestry Act, 1916. F.C. Mining Act, 1906-1952. M.D. 11.10 Pollution of Soil Soil Conservation Act, l938-i952. L.D. Crown Lands Consolidation Act, 1913. L.D. 113. Relevant Laws Juris di ct1 on Fann Water Supplies Act, 1946. p. ~!.D. W.C.LC. 11.11 Visual Pollution The Local Government Act, 1919. L. G.A . • S .P.A. 11. 12 Others Pipelines Act, 1957. M.D. JURISDICTION Agriculture Department A. D. Chief Secretary's Department C.S .D. Department of Motor Transport D.M.T. Factory and Industrial Welfare Board F.I.W.B. Forestry Commission :=.C. Health Commission of N.S.W. H.C. Hunter District Water Board H.D.W.B. Lands Department L.D. Local Government Authorities L.G.A. Maritime Services Board ~:.s. a. Meat Industry Authority M.I.A. Metropolitan Meat Industry Board Metropolitan Waste Disposal Authority M.W.DJ,. Metropolitan Water Sewerage & Drainage Board M• \•J • S• D• B • Mines Department M.D. National Parks and Wildlife Service N.P.\-!.L.S. Pastures Protection Boards P.P.B. 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