The Phosphate Co-Operative Company of Australia Limited and Environment Protection Authority [1977] HCA 65

High Court of Australia Stephen, Mason and Aickin JJ. The Phosphate Co-Operative Company of Australia Limited and Environment Protection Authority [1977] HCA 65

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1977, Dec. 9 Stephen J.

The Phosphate Co-operative Co. of Australia Ltd. ("the company") is a Victorian manufacturer of artificial fertilizers. It has fertilizer works at North Shore on Corio Bay where superphosphate is produced and this involves the application of sulphuric acid to phosphate rock. The company manufactures its own sulphuric acid by means of a chemical reaction in a contact plant. There are two contact plants at the company's works and their operation, especially when first starting up the plant, involves the discharge to atmosphere of acid gases, described as sulphur trioxide. The company accordingly applied to the Environment Protection Authority ("the Authority") pursuant to the Environment Protection Act 1970 Vict. for a licence to discharge waste from one of these contact plants.

The Authority granted the company such a licence but imposed a number of conditions, one of which prohibited the commencement or continuation of start-up operations at the contact plant if offshore winds were blowing. The company objected to this condition as excessively onerous since it would severely restrict the occasions upon which it might lawfully start up the contact plant.

The company accordingly availed itself of the right accorded by the Environment Protection Act to appeal against conditions imposed upon the grant of a licence and instituted an appeal to the appropriate appellate body constituted under the Act, the Environment Protection Appeals Board ("the Board"). The Board heard the appeal and somewhat varied the terms of the condition but not so as to satisfy the company, which then, by recourse to the procedure prescribed by s. 36 (3) of the Act, appealed to the Supreme Court. That section grants a right of appeal to the Supreme Court on any question of law. This appeal takes the form of an order nisi to review and on its return it came before Crockett J. in the Supreme Court. It involved a large number of grounds which his Honour dealt with in a reserved judgment. His Honour in the outcome discharged the order nisi. The company was subsequently granted special leave to appeal to this Court, its appeal being limited to two of the questions which had been canvassed before Crockett J. It is with these two questions that we are now concerned.