Environmental and planning law has many interactions with science and public health initiatives. Fluoridation of water, like many other public health issues, is an emotive issue which over time has led to the creation of various community opposition groups. One of the mechanisms these groups have used to oppose fluoridation is judicial review in the Land and Environment Court. The case Eurobodalla Fluoride Issues Inc v Eurobodalla Shire Council  NSWLEC 182, decided late last year, is a case in point.
In this case, the Land and Environment Court dismissed proceedings brought by Eurobodalla Fluoride Issues Inc (the Applicant). The Applicant challenged the Council’s fluoridation of the water supply in the Eurobodalla local government area.
Although the case was fought on three limbs, a substantial focus of the judgment relates to the interaction of the fluoridation regulatory framework with Part 5 of the Environmental Planning and Assessment Act 1979 (EPA Act).
Water supply fluoridation
Under the Fluoridation Act, the Director-General of the Department of Health (Director-General) exercises the control of fluoridation of a public water supply. The fluoridation statutory regime also includes the Fluoridation of Public Water Supplies Regulation 2007 (NSW) and the Code of Practice for the Fluoridation of Water Supplies (2002) (NSW) (Fluoridation Code).
Section 6 of the Fluoridation Act provides for a water supply authority (in this case, the Council) to add fluorine to any public water supply under its control, with the approval of or at the direction of the Director-General of the Department of Health. The Director-General had delegated his power to approve or direct fluoridation to the Chief Health Officer and the Chief Dental Officer of the Department.
Part 5 of the EPA Act
Part 5 of the EPA Act can easily be misunderstood. It is really an assessment process for ‘activities’ (as that word is broadly defined) and involves establishing a statutory precondition before the exercise of power (to approve or carry out an activity) by a determining authority. The scheme of Part 5 is that a determining authority must consider, to the fullest extent, the environmental impacts of an activity and, if there is likely to be a significant impact, consider an Environmental Impact Statement, or Species Impact Statement.
Part 5 does not apply to development that requires a development consent under Part 4 (including exempt or complying development), or to State significant development or State significant infrastructure.
The EPA Act argument
The Applicant argued that in considering whether to install and operate the fluoride dosing facility, the Council had breached Part 5 of the EPA Act.
Under Part 5, a ‘determining authority’ in its consideration of an ‘activity’ is required to ‘examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity’ (section 111(1)). A determining authority must not carry out an activity or grant an approval in relation to an activity that is prescribed or that is likely to ‘significantly affect the environment’ unless the determining authority has complied with a number of requirements including, relevantly, that it has considered an environmental impact statement (section 110(1)(a)). The Council accepted that the construction and operation of the fluoride dosing facility at the plant was an ‘activity’ for the purposes of Part 5, and that Council was the ‘determining authority’.
The Applicant argued that the installation and operation of dosing equipment was an ‘activity’ that engaged section 112 of the EPA Act because it was ‘likely to significantly affect the environment’ due to claimed risks to human health. Section 112 relevantly provides that a determining authority shall not carry out an activity that is likely to significantly affect the environment unless it has considered an environmental impact statement in respect of the activity. The Applicant claimed that the Council did not address the effects of fluoridation on human health.
Because the Council had made an application to the Director-General for approval to fluoridate its water supply, Craig J considered how the Fluoridation Act and section 110E of the EPA Act impacted the ambit of the Council’s obligation under section 111. Given sections 111 and 112 also applied to the Director-General’s exercise of power when determining to grant an approval under section 6 of the Fluoridation Act, and Craig J assumed that the Director-General complied with sections 111 and 112 in granting the approval, it was necessary to consider section 110E, which provides an exception to the usual requirements in sections 111 and 112 for other authorities. Section 110E provides that sections 111 and 112 do not apply in respect of an activity that has been approved, or is to be carried out, by another determining authority after environmental assessment in accordance with Part 5. That is, it prevents duplication.
His Honour found that the Director-General complied with sections 111 and 112 and must have considered the human health impacts in doing so, and accordingly section 110E(c) excluded the application of sections 111 and 112 to the Council’s decision to give effect to the Director-General’s approval.
Justice Craig held that even if section 111 did apply, Council had engaged with the detail of the section’s provisions. His Honour reviewed the history of the Council’s consideration of fluoridation, and noted that the Council had available to it material that was in support of and critical of fluoridation. His Honour held that, given its limited role, the Council did take into account ‘to the fullest extent possible’ all matters affecting or likely to affect ‘the environment’, understood in the circumstances as an aspect of the surroundings of humans. In relation to section 112, Craig J held that even if section 110E did not apply, his Honour was not satisfied that the provisions of section 112 were engaged, because it was not established that fluoridation has or is likely to have a significant effect upon the environment.
This decision has similarities with other decisions by the Court on Part 5 and fluoridation of water, in particular the Oshlack v Rous Water (No 2)  NSWLEC 111. As there may be more than one authority whose approval is required in order to enable an activity to be carried out, the section 111 duty needs to be properly considered by authorities. In this matter, both the Director-General and the Council were found to have fulfilled their duties, and accordingly, the water supply in the Eurobodalla local government area will continue to be fluoridated, as it is in most of NSW.
 The Applicant made the following three arguments:
- The EPA Act argument – in installing and operating the fluoride dosing facility at the Northern Water Treatment Plant, the Council breached sections 111 and 112 in Part 5 of the EPA Act
- The LG Act argument – the Council failed to obtain a required approval under section 60 of the Local Government Act 1993 (LG Act) for the construction or extension of ‘water treatment works’
- The Gazettal argument – the ‘instrument of approval’ given by the Chief Dental Officer on 29 March 2011 was ineffective to operate as an approval under section 6 of the Fluoridation of Public Water Supplies Act 1957 (Fluoridation Act) because it was not notified in the Gazette.
Authors: Todd Neal and Elizabeth Sivell