AMG (WA) Pty Ltd v Minister for Environment the Honourable Stephen Dawson MLC
[2020] WASC 197
•11 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: AMG (WA) PTY LTD -v- MINISTER FOR ENVIRONMENT THE HONOURABLE STEPHEN DAWSON MLC [2020] WASC 197
CORAM: ALLANSON J
HEARD: 15 APRIL 2020
DELIVERED : 11 JUNE 2020
FILE NO/S: CIV 1255 of 2019
BETWEEN: AMG (WA) PTY LTD
Applicant
AND
MINISTER FOR ENVIRONMENT THE HONOURABLE STEPHEN DAWSON MLC
Respondent
Catchwords:
Judicial review - Environmental protection - Appeal from decision of CEO to refuse clearing permit - Nature of appeal to Minister - Whether Minister required to reconsider application for permit - Turns on own facts
Legislation:
Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 44
Environmental Protection Act 1986 (WA), s 3, s 31, s 45, s 51C, s 51E, s 51F, s 51H, s 51I, s 51P, s 51O, s 100, s 101A, s 105, s 106, s 107, s 107A, s 107B, s 107C, s 107D, s 108, s 109, s 110, sch 5
Rules of the Supreme Court 1971 (WA), O 56
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | P McQueen |
| Respondent | : | P D Spragg |
Solicitors:
| Applicant | : | Lavan |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Attorney General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment and Disability Services [2019] WASCA 102
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Erujin Pty Ltd v Jacob [2018] WASCA 212
Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
ALLANSON J:
Introduction
In 2017, AMG (WA) Pty Ltd applied for a permit to clear native vegetation on land in Waroona. The application was refused. On 9 July 2018, the Minister for Environment dismissed an appeal against that decision. AMG applies to review the decision of the Minister.
The application for judicial review was filed on 11 February 2019, about four weeks outside the limitation period under O 56 of the Rules of the Supreme Court 1971 (WA).
On 23 January 2020, by consent, the court gave AMG leave to substitute grounds of the application in terms of a minute filed that day. The grounds on which AMG now relies (excluding particulars) are:
1.The Minister erred in law by:
1.1Failing to consider and have regard to matters of public interest that outweighed the environmental impacts of the proposed clearing.
1.2Failing to await the outcome of a decision by the delegate of the Commonwealth Minister in respect of a 'controlled action' under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) and to have regard to that decision.
1.3Failing or refusing to deal with the proposed offset of 106 ha of native vegetation.
1.4Erred in relying upon the findings and conclusions in the Appeals Committee report that the SWREL[1] report correctly classified the Jackson Block in the Category 1(a) proximity category so as to form a part of an ecological linkage.
1.5Failing to reconsider the clearing permit application afresh on appeal as a review de novo on the merits of the application (not limited to determining the grounds set out in the appeal) and failing to have regard to the entire merits of the application.
2.Having regard to each of the matters set out in Grounds 1.1 to 1.5 (inclusive) of these Substituted Grounds, the decision of the Respondent to dismiss the Applicant's appeal under section 101A and 109 [of the Environmental Protection Act] was unreasonable in the Wednesbury sense and vitiated the valid exercise of the Respondent Minister's discretion under section 101A and 109 [of the Environmental Protection Act].
[1] South West Regional Ecological Linkage.
Unless stated otherwise, references in these reasons to legislation are to the Environmental Protection Act 1986 (WA); references to the Department are to the Department of Water and Environmental Regulation; and references the CEO are to the CEO of that Department. Where it is used in a quote, I will retain the acronym DWER for the Department.
The evidence
AMG relies on the following affidavits:
(1)Craig Henderson Wallace, sworn 8 April 2019 (on issue of delay);
(2)Aaron Michael Grainger, sworn 7 October 2019 (subject to redactions consistent with orders made on 23 January 2020);[2]
(3)Kirsten Muir-Thompson, sworn 10 December 2019;
(4)Aaron Michael Grainger, sworn 14 February 2020.
[2] By those orders, [45.4], [45.7], [57] ‑ [63], [64] ‑ [68] and [70] ‑ [114] and the attachments referred to in those paragraphs were not admitted into evidence in these proceedings.
The Minister relied on two affidavits:
(1)Paul Anthony Stephens, affirmed 3 May 2019, and
(2)Emma Jane Gaunt, affirmed 3 May 2019.
The statutory context
Part V of the Act is headed 'Environmental Regulation' and contains divisions governing pollution and environmental harm offences; clearing of native vegetation; prescribed premises, works approvals and licenses; and notices, orders, and directions. The application for a permit to clear native vegetation is governed by pt V, div 2.
Applications for a clearing permit
A person who causes or allows clearing commits an offence unless, relevantly, the clearing is done in accordance with a clearing permit: s 51C.
An application for a clearing permit is required to indicate the area or areas to which it relates, and be supported by any management plan, maps, and other documents and information required by the CEO: s 51E(1). The application must indicate whether it relates to the clearing of particular land specified in the application, or the clearing of different areas from time to time for a specified purpose: s 51E(1)(b).
An application can only be made by the owner of the land, a person acting on the owner's behalf, or a person who satisfies the CEO that the person is likely to become the owner of the land, or, if the application relates to clearing of different areas from time to time for a purpose specified in the application, by a person on whose behalf the clearing is to be done: s 51E(2).
The CEO shall invite any public authority or person with 'a direct interest in the subject matter of the application' to comment on it, and advertise the application inviting comment on it: s 51E(4).
The CEO shall grant or refuse to grant a clearing permit after having taken into account any comments received from any public authority or person invited to comment, and subject to s 51O and s 51P: s 51E(5).
A clearing permit may be granted for some or all of the clearing applied for, describing the boundaries of the area that may be cleared; or if it relates to an application to clear different areas from time to time for a specified purpose, the permit is to describe the purpose for which the clearing may be done and the principles and criteria to be applied, and the strategies and procedures to be followed, in relation to the clearing. s 51E(8).
A permit may be granted subject to such conditions as the CEO considers to be necessary or convenient 'for the purposes of preventing, controlling, abating or mitigating environmental harm or offsetting the loss of the cleared vegetation': s 51H(1). For example, a condition may require the permit holder to establish and maintain vegetation on land other than land cleared under the permit in order to offset the loss of the cleared vegetation, or make monetary contributions to a fund maintained for the purpose of establishing or maintaining vegetation: s 51I(2)(b).
In considering an application for a clearing permit, or an amendment of a clearing permit, the CEO shall have regard to the clearing principles so far as they are relevant to the matter under consideration, and to any planning instrument[3] or other matter that the CEO considers relevant: s 51O(2),(4). The CEO may only make a decision that is seriously at variance with the clearing principles if in the CEO's opinion there is a good reason for doing so: s 51O(3).
[3] 'Planning instrument' is defined in s 51O(1) to mean (a) a scheme or a strategy, policy or plan made or adopted under a scheme; or (b) a State planning policy approved under section 29 of the Planning and Development Act 2005; or (c) a local planning strategy made under the Planning and Development Act. 'Scheme' is defined in s 3 and includes region planning schemes and local planning schemes.
In considering an application for a clearing permit or amendment of a clearing permit, the CEO shall ensure that the clearing permit or its amendment is consistent with any approved policy,[4] and shall not amend or shall refuse to grant a clearing permit if the CEO considers that the associated effect on the environment would be inconsistent with any approved policy: s 51P(2). In specified circumstances the CEO may grant or amend a clearing permit so as to make the permit subject to conditions which specify standards that are more stringent than those required by or under an approved policy: s 51P(3).
[4] That is, an environmental protection policy prepared under pt III and approved under s 31(d).
Section 51F makes separate provision for a clearing permit related to a proposal which has been referred to the Authority under pt IV.
The clearing principles in sch 5, cl 1 are:
Native vegetation should not be cleared if ‑
(a)it comprises a high level of biodiversity; or
(b)it comprises the whole or a part of, or is necessary for the maintenance of, a significant habitat for fauna; or
(c)it includes, or is necessary for the continued existence of, threatened flora; or
(d)it comprises the whole or a part of, or is necessary for the maintenance of, a threatened ecological community; or
(e)it is significant as a remnant of native vegetation in an area that has been extensively cleared; or
(f)it is growing in, or in association with, an environment associated with a watercourse or wetland; or
(g)the clearing of the vegetation is likely to cause appreciable land degradation; or
(h)the clearing of the vegetation is likely to have an impact on the environmental values of any adjacent or nearby conservation area; or
(i)the clearing of the vegetation is likely to cause deterioration in the quality of surface or underground water; or
(j)the clearing of the vegetation is likely to cause, or exacerbate, the incidence or intensity of flooding.
Appeals from a decision of the CEO
By s 101A(1),
Subject to section 105, an applicant for ‑
(a)a clearing permit who is aggrieved by the refusal of the CEO ‑
(i)to grant the permit under section 51E(5); or
(ii)to grant the permit under section 51E(5) for all of the clearing applied for;
or
(b)a clearing permit who is aggrieved by the specification by the CEO of any condition in the permit under section 51E(5) or 51N(2),
may within 21 days of being notified of that refusal or specification, as the case requires, lodge with the Minister an appeal in writing setting out the grounds of that appeal.
An appeal also lies to the holder of a permit who is aggrieved by the amendment, revocation or suspension of the permit; a person other than an applicant who disagrees with a specification of any condition or with an amendment; or a person who disagrees with the grant of a permit: s 101A(2), (3) and (4). In each case, the appeal is in writing, setting out the grounds of the appeal.
Section 101A(6) to (9) provide for the operation of any decision pending the determination of any appeal.
Sections 106 to 110 provide, in detail, for the appeal process. Relevantly, for an appeal under s 101A, the Appeals Convenor[5] shall request the CEO to report to the Minister on the appeal and may consult the appellant and any other appropriate person 'to determine whether or not the point at issue in the appeal can be resolved': s 106(1).
[5] Sections 107A and 107B provide for the appointment and functions of an Appeal Convenor.
By s 106(2), the Minister may appoint an appeals committee to consider and report to the Minister on the appeal. An appeals committee shall consist of one person with expertise in environmental matters, or two or more persons at least one of whom has that expertise: s108(1).
In the case of an appeal against a decision of the CEO, an appeals committee shall consult the CEO and the appellant, and may consult with such other persons as it considers necessary: s 109(1)(a) and (aa).
An appeals committee 'shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, shall not be bound by any rules of evidence and may conduct its enquiries in whatever manner it considers appropriate': s 109(1)(b).
By section 109(3) and (4):
(3)On completing its consideration of an appeal, an appeals committee shall, subject to subsection (4), report to the Minister on its findings and recommendations in respect of the appeal, and the Minister shall allow or dismiss the appeal ‑
(a)if the appeal is from a decision of the Minister, in accordance with; or
(b)if the appeal is from a decision other than a decision of the Minister, having regard to,
those recommendations and the decision of the Minister under this subsection shall be final and without appeal.
(4)An appeals committee shall not in reporting to the Minister under subsection (3) make any recommendation that conflicts with any approved policy or with any standard prescribed by or under this Act.
The factual background to the appeal
The submissions filed on behalf of the Minister, at [9] - [20], set out the factual background:[6]
[6] Footnotes omitted.
The application for a clearing permit
9.On 10 March 2017, the Applicant made an application to the CEO of DWER, pursuant to section 51E of the Act, for a clearing permit. The Applicant elected to have the application assessed in accordance with the bilateral agreement made under section 45 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) relating to environmental assessments.
10.The Applicant sought to clear approximately 14 hectares of native vegetation located at Lot 3 Buller Road in Waroona, within an area known as 'Jackson Block', for the purpose of a joint sand extraction operation with Pandanus Park Aboriginal Community.[7]
[7] Referred to several times in AMG's submissions as the local Aboriginal community, but located near Derby.
11.To mitigate the potential impacts of the proposed clearing, the Applicant proposed two offsets, being a conservation covenant over 106 hectares of non-secure remnant native vegetation, and revegetation of 2 hectares within a conservation significant wetland.
12.On 29 September 2017, DWER sent a copy of a Preliminary Assessment Report to the Applicant. The covering letter indicated that clearing in an area of the subject land comprising 3.25 hectares (Area 1) might be approved if an appropriate offset was provided by the Applicant. As to the remaining area comprising 10.75 hectares (Area 2), the covering letter indicated that clearing in this area was likely to be refused, including for the reason that Area 2 comprised high biodiversity, significant habitat for fauna and vegetation in a good to very good condition.
13.On 26 October 2017, DWER wrote to the Applicant, extending a final opportunity to the Applicant to provide information regarding an appropriate offset that would enable DWER to grant a clearing permit in respect of the 3.25 hectares comprising Area 1.
14.At a meeting with DWER on 16 November 2017, the director of the Applicant verbally advised officers from DWER that the Applicant was not intending to amend the application for a clearing permit or to provide a revised offset proposal for Area 1, and requested that a determination be made in relation to the full application area.
15.On 4 January 2018, the Applicant advised DWER that it no longer wished for the application to be assessed in accordance with the bilateral agreement.
16.In a letter dated 5 January 2018, to which was attached a Clearing Permit Decision Report, a delegate of the CEO refused the application for a clearing permit.
The decision under review ‑ the appeal to the Minister
17.By letter dated 18 January 2018, the Applicant appealed to the Minister.
18.On 19 March 2018, the Minister appointed Paul Stephens as an appeals committee (Appeals Committee) to investigate and report on the appeal, pursuant to section 106(2) of the Act.
19.The Appeals Committee considered the appeal and prepared a report for the Minister in accordance with section 109 of the Act. For the purposes of resolving the appeal, the documents that the Minister had before him included:
(a)the report of the Appeals Committee dated May 2018.
(b)the Applicant's letter dated 18 January 2018 commencing the appeal;
(c)the report of the CEO of the DWER dated 6 March 2018 made pursuant to section 106(1)(b) of the Act (Section 106(1)(b) Report); [8]
(d)the Applicant's response dated 16 April 2018 to the Section 106(1)(b) Report.
20.On 9 July 2018, the Minister dismissed the appeal, for the reasons set out in an attachment to a letter send to the Applicant's representative.
[8] The Section 106(1)(b) Report is at PAS 7 to Mr Stephen's affidavit. It included attachments: see affidavit of Ms Gaunt [37]. Those attachments included the application for a clearing permit and the Clearing Permit Decision Report: see affidavit of Mr Stephens PAS 7 at 71, 118.
AMG accepted that statement.
AMG also filed a chronology, the contents of which were not in dispute.
The affidavits contain documents and information not included in the above summary. I will refer to particular facts when, and to the extent that, they are relevant.
The appeal to the Minister
On 18 January 2018, Accendo Australia, on behalf of AMG, lodged the appeal to the Minister at the Office of the Appeals Convenor. The letter set out nine grounds.[9]
[9] Affidavit of Mr Stephens PAS 6.
First, AMG complained of 'administration errors', and that the Department initially failed to recognise the Pandanus Park Aboriginal Community as a legal entity, and it was excluded from the clearing permit application during the advertising period. AMG also complained that letters of support were not included as a component of the clearing permit application during the advertising period.
Second, AMG complained of assessment inconsistencies with an earlier application for predominantly the same area in 2016.
Third, AMG contended that at a site visit on 6 July 2017, Department representatives refused to visit a particular area, which AMG said fragmented the ecological linkage as the result of a Western Power transmission powerline corridor. AMG complained that the Department representatives also declined to view a proposed offset area.
Fourth, AMG questioned the delineation of the application area into two areas based on differences in vegetation condition and composition. This ground of appeal appeared to question the basis for the differences, the methodology used, and the accuracy of the delineation.
Fifth, AMG questioned whether the application area contained significant black cockatoo habitat.
Sixth, AMG challenged the finding that the application area was part of a South West Regional Ecological Linkage and was included within a particular proximity analysis group. In February 2018, AMG provided additional information in support of its appeal relevant to this ground.[10]
[10] Affidavit of Ms Gaunt EJG4 at 19.
Seventh, AMG challenged the finding that the proposed clearing was at variance with clearing principle (h).[11]
[11] The clearing principles in sch 5 of the Act are set out in full in the discussion of the legislative context. Clearing principle (h) states, 'the clearing of the vegetation is likely to have an impact on the environmental values of any adjacent or nearby conservation area'.
Eighth, AMG challenged the finding that sand excavation had the potential to impact on wetland values and was at variance with clearing principle (i).[12]
[12] Clearing principle (i) states, 'the clearing of the vegetation is likely to cause deterioration in the quality of surface or underground water'.
The final ground challenged the Department's approach to the proposed offset area.
In accordance with section 106(1), the Appeals Convenor requested the CEO to report to the Minister on the appeal. The Clearing Permit ‑ Appeal Report was submitted to the Appeals Convenor on 6 March 2018.
A copy of the report was provided to AMG on 6 April 2018, with a request that any comment on the advice be provided by no later than 16 April 2018.[13] Accendo submitted a response by letter on 16 April 2018.[14]
[13] Affidavit of Ms Gaunt EJG 11 at 35.
[14] Affidavit of Mr Stephens PAS 20.
On 11 May 2018, pursuant to s 109(3), the Appeals Committee delivered its report to the Minister recommending that the appeal be dismissed.
In a summary of the Appeals Committee Report, the Appeals Convenor advised the Minister:
Key considerations/Appeal Finding
Based on the information gathered in the course of this investigation it was determined that the application area retains a recognisable vegetation structure with more than 60 native plant species present and is regenerating well following the January 2016 bushfires. It provides forage for the three species of black cockatoo, potential nesting habitat for Forrest Red-tailed Black Cockatoos and is part of a much larger bushland patch with the regional ecological linkage. It is also part of the Southern River vegetation complex of which only 18 per cent remains on the Swan Coastal Plain
Conclusion
If left undisturbed the application area will also continue to provide a buffer to the much more intact and ecologically valuable remainder of Lot 3, protecting it from edge effects such as the spread of weeds and dieback. [15]
[15] Affidavit of Ms Gaunt EJG 15 at 40.
Mr Stephens, the Appeals Committee, also briefed the Minister orally on 18 June 2018.
On 9 July 2018, the Minister advised AMG and its consultant that the appeal had been dismissed. The Minister's reasons were published pursuant to s 110.
The decision of the Minister
The reasons for decision identified substantive issues and administrative issues. The substantive issues related to the Department's assessment of four matters:
(1)the value of the proposed clearing area as habitat for black cockatoos;
(2)its role as part of an ecological linkage;
(3)potential impacts to a nearby conservation area; and
(4)possible impacts to ground and surface water.
The issues of an administrative nature related to the Department's decision-making process, including identification of the applicant, delineation of the area into two parts, and the adequacy of the site inspection.[16]
[16] Affidavit of Mr Stephens PAS 35 at 615 ‑ 616.
After identifying those issues, the decision stated:
On the substantive issues, the appellant stated that the assessment of the value of the application area as being valuable as black cockatoo habitat was subjective and not supported by a firm methodology, and that there was no recent evidence of foraging or breeding by black cockatoos in the application area. The appellant also drew attention to the way DWER assessed the application area in two parts.
The Minister considered the issues raised by the appellant, together with the advice of the Appeals Committee and DWER. While it was accepted that the values of the vegetation to black cockatoos were negatively impacted by the Waroona fires, the Minister considered that the vegetation nonetheless retains habitat values for the identified species. The Minister also acknowledged the Appeals Committee's advice in respect to the status of the three species, and the impact posed by further clearing of vegetation that is of habitat value.
It follows that the Minister agreed with the Appeals Committee that the 14 hectares of native vegetation proposed to be cleared forms part of a significant habitat for black cockatoos. The Minister also noted that the vegetation may form part of a habitat for brush-tailed phascogales and quendas.[17] In coming to this conclusion, the Minister also noted that only 18 per cent of the pre-European Southern River vegetation complex on the coastal plain remains intact, and only 15 per cent of native vegetation remains within a 10 km radius of the property.
In respect to the identification by DWER of the site as part of an ecological linkage, the appellant submitted that DWER failed to adequately take into consideration the presence of the Western Power transmission corridor. The appellant was of the view that this corridor, which is regularly cleared as part of maintenance activities, means there is effectively no connectivity between the area proposed to be cleared to the Buller Nature Reserve. The appellant also raised the decision of DWER to grant permits to the Shire of Waroona to expand an existing landfill south of the area the subject of this appeal.
In considering this issue, the Appeals Committee acknowledged that factors such as the powerline corridor, the adjoining landfill, the adjoining farmland and the previous unremediated sand extraction pits may support the notion that the ecological linkage is not maintained. However, the Committee found that the subject area is clearly part of a patch of bushland with a regional linkage.
Based on the information available, the Minister agreed with the Appeals Committee that while clearing the application area would not sever the regional linkage, it would make the linkage patch smaller and expose to edge effects a greater area that is in better condition. As such, the Minister was of the view that DWER appropriately considered ecological linkages in its assessment of the proposal.
On the related issue of possible impacts to Buller Nature Reserve, the appellant argued that there is no connectivity between the area proposed to be cleared and the Reserve, and as such, the clearing should be approved. In considering this issue, the Appeals Committee reiterated its findings in respect to the habitat values of the area proposed to be cleared, and found that it was reasonable to conclude that the proposed clearing would negatively affect the environmental values of the Buller Nature Reserve by reducing foraging and nesting opportunities available to black cockatoos and by reducing the bushland available to other species that may travel between the remnant bushland patches in the locality. The Minister concurred with the Appeals Committee's advice in this regard, and as a result, the Minister considered that DWER adequately considered this matter in assessing the proposal.
The appellant also questioned DWER's approach to the application of an offset for the proposal, submitting that its current approach was inconsistent with its approach to the previous permit application. This issue relates to the position taken by DWER that the significant residual impacts raised by the clearing of 'Area A' (3.25 hectares of the application area) could be counterbalanced with an appropriate offset, whereas this was not put forward as an option in the previous application.
The appellant did not pursue the option of a partial approval with an offset, as the area identified by DWER was economically unviable. Instead, the appellant was of the view that the proposed offset (being a proposal to set aside 106 hectares of vegetation on the western part of Lot 3) was suitable to counterbalance the residual impacts of the area proposed to be cleared.
Taking into account the values identified in respect to the entire application area, the Minister believed DWER was justified in forming the view that an offset was not appropriate in this instance.
As to the other matters raised in the appeal, the Minister considered the issues the appellant raised, the advice of DWER and the advice of the Appeals Committee, and determined these matters in accordance with the Appeals Committee's recommendations.
It follows that the Minister considered DWER's assessment of the proposed clearing was appropriate, and adequately considered the environmental values and other relevant matters relevant to the proposal. The Minister has therefore dismissed the appeal.[18]
[17] Both small marsupials.
[18] Affidavit of Mr Stephens PAS 35 at 616 ‑ 617.
The nature of the appeal under section 101A
The nature of the appeal under s 101A emerged as a threshold issue in this application. The parties agreed on the principles to be applied: an appeal is a remedy given by statute and the nature of the appeal is to be determined on the proper construction of the statute in question.[19]The parties differed on the question of construction.
AMG's submission
[19] Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32 [54] ‑ [62].
AMG submitted that the power exercisable by the Minister on an appeal under s 101A was final and without appeal, and accordingly had to be exercised consistently with other final decision-making powers of the Minister under the Act. AMG submitted, by reference to the decision of the Court of Appeal in Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment and Disability Services,[20] that when making a final decision the Minister was required to exercise his powers on appeal in respect of environmentally significant proposals 'in the public interest taking into account all matters that appear to the Minister to be relevant to the public interest, and not limited to the environmental considerations that arise in respect of such proposals'.[21] That is, the public interest was not only a matter to which the Minister could have regard but was a consideration to which he must have regard in order to exercise his powers lawfully.
[20] Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment and Disability Services [2019] WASCA 102.
[21] AMG's written reply submissions [4].
AMG supported the submission also by reference to the requirement, in s 109(1)(b), that the Appeals Committee act according to the substantial merits of the case.
On that characterisation of the nature of the appeal, AMG submitted that the Minister's power would miscarry if his deliberations were confined to environmental considerations or, apparently, if the Minister confined his consideration to matters raised in the grounds of appeal under section 101A and the materials lodged in support of it. The Minister could not exclude consideration of the matters raised in the clearing permit application, in particular 'the value of the sand resource and the social and economic benefits for the local Aboriginal community'.[22]
The Minister's submission
[22] AMG's written submissions [8] ‑ [11].
The Minister submitted that the appeal is not an appeal de novo.[23]
[23] The Minister's written submissions [26] ‑ [33].
The actions of the Appeals Committee and the Minister must, in general, be evaluated in the context of AMG's case in its appeal to the Minister; in particular, the letter setting out its grounds of appeal and its submissions against the CEO's refusal of the clearing permit application.
The Appeals Committee was required to act according with the substantial merits of the case in performing its function under s 109. The Minister's function, having regard to the report of the Appeals Committee, was to respond to the case advanced by the appellant, and not to investigate the application at large.[24]
[24] See Erujin Pty Ltd v Jacob [2018] WASCA 212 [73], [132].
The Minister submitted that the Conservation Council case did not assist AMG.[25]
Consideration
[25] The Minister's written submissions [39] ‑ [81].
The construction advanced on behalf of the Minister is, in my opinion, consistent with the provisions of pt V and pt VII, and to be preferred.
First, the appeal is from a decision to grant or refuse to grant a statutory permit, from the amendment of the permit or the revocation or suspension of the permit, or from the specification of a condition in the permit.[26]
[26] Section 101A(1) - (4).
Second, an appeal must be commenced in writing setting out the grounds of the appeal.[27]
[27] Section 101A. The requirement for written grounds is common to appeals under pt VII.
Third, the preliminary procedure on appeals provides for the original decision-maker, in this case the CEO, to report to the Minister 'on the appeal', not on the original application.[28]
[28] Section 106(1), and see also s 107(1).
Fourth, when an appeal is lodged, the Appeals Convener may consult the appellant and others 'to determine whether or not the point at issue in the appeal can be resolved'.[29]
[29] Section 106(1)(c).
Fifth, where an appeals committee is appointed, it is to consider and report to the Minister 'on the appeal'.[30]
[30] Section 106(2).
Sixth, an appeals committee is to report to the Minister on its findings and considerations 'in respect of the appeal'.[31]
[31] Section 109(3).
Seventh, the power of the Minister is to allow or dismiss the appeal.[32]
[32] Section 109(3).
Finally, as the Minister submitted, its construction is consistent with statements of the court in Erujin Pty Ltd v Jacob:
The actions of the Appeals Convenor and the Minister must, in general, be evaluated in the context of the appellant's case in its appeal to the Minister; in particular, its grounds of appeal and its submissions against the CEO's refusal of the clearing permit application. [33]
Later their Honours said 'The Minister's function was to respond to the case advanced by the appellant, and not to investigate the application at large'.[34]
[33] Erujin Pty Ltd v Jacob [73].
[34] Erujin Pty Ltd v Jacob [132].
AMG's reliance on the Conservation Council case is misplaced. Buss P and Beech JA, in their joint reasons, analysed the appeal provisions in relation to the three stage process in pt IV for the assessment of environmental impact: (1) referral of a proposal to the Environmental Protection Authority; (2) assessment and report to the Minister by the Authority; and (3) consideration and determination of whether the proposal may be implemented and, if so, to what conditions and procedures that should be subject.[35]
[35] Conservation Council [90] ‑ [105].
Relevantly, the Minister's decision made on an appeal under s 100(1)(d) is in regard to the content of, or any recommendation in, the report of the Authority. The Minister's decision is the final element of the second stage of the process, allowing the process to move to the third stage: 'agreement or decision as to whether the proposal may be implemented (and, if so, subject to what procedures and conditions).[36] As to the third stage, Buss P and Beech JA said:
…by contrast to the EPA in preparing its report, in determining whether the proposal may be implemented, decision-makers are not restricted to environmental factors. Under the Act, it is for the decision-makers, or those deciding in the absence of agreement of decision-makers, to determine the weight to be given to environmental factors. If they so decide, the Act permits decision-makers to reach a view that a proposal may be implemented notwithstanding harmful effects upon the environment, such as its likely impact on an endangered species. Such a decision might be reached, for example, because of economic or other social benefits. Under the Act, decision-makers are charged with making the decision involved in balancing environmental factors with economic, social, cultural and other considerations.[37]
[36] Conservation Council [131].
[37] Conservation Council [99]. Emphasis added.
AMG's reliance on the sentence emphasised in the above passage does not take into account that their Honours were then referring to the third stage of the process in pt IV, and the particular process set out in s 45(1) to (4), by which the Minister, other Ministers, and decision making authorities, decide whether a proposal may be implemented and on what conditions.
I do not accept AMG's submission, as I understood it, that because the Minister makes a final decision on an appeal under s 101A, consistency in interpretation required that he be regarded as in the same position as the decision makers under s 45, and that he may not exclude from consideration any matter which may be relevant to the public interest. That approach has no support from the text of the Act, nor from the authority relied on.
It is not necessary to decide whether, in deciding an appeal under s 101A, the Minister's considerations are limited to environmental factors, and he cannot take into account matters of public interest. Counsel for the Minister submitted that the Minister could, in his discretion, have regard to wider factors including the public interest. Generally, where a discretionary power is conferred on a Minister, in exercising that discretion the Minister may take into account broader policy considerations.[38] But even if regard to those broader considerations is permissible, on the proper construction of the Act, they are not mandatory considerations. And, in this matter, those considerations were not advanced by AMG in its appeal to the Minister.
[38] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 42; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 529, 565; Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 [50].
The Grounds of the application
Ground 1.1
AMG contends that the Minister failed to consider and have regard to matters of public interest that outweighed the environmental impacts of the proposed clearing. Underpinning this ground is the contention that the Minister was required to have regard to those factors to lawfully exercise his powers on appeal.
The factors, as set out in particulars, are the 'identified economic value of the sand resource', and the interests of the co-applicants, the Pandanus Park Aboriginal Community.
These matters were not raised in the grounds of appeal to the Minister, nor in the response to the Clearing Permit - Appeal Report, lodged by Accendo on behalf of AMG and Pandanus Park Aboriginal Community on 16 April 2018. The only reference in the appeal grounds was, in ground 1, to 'administrative issues [which] resulted in the clearing permit application being incorrectly advertised'. That complaint was taken up in the response to the Appeal Report. The wider issue was not advanced on the appeal.
The Appeals Committee, in dealing with the ground of 'administration errors', referred to the complaints that the Pandanus Park Aboriginal Community had initially not been recognised as a legal entity and had not been included in the advertising. The Appeals Committee reported: 'The applicant's concern seems to be that if the Pandanus Park Aboriginal Community's status in the joint venture and the supporting correspondence were not recognised in the application and assessment process then the future social and economic benefits would not be understood by the broader community and given due weight in the public submission and assessment process'. The Appeals Committee concluded, 'it seems unlikely that the non-inclusion/non-recognition of the joint venture partner during some of the public advertising period and for part of the application processing would have led to a different outcome in the assessment of the environmental values and impacts of the proposed clearing'. [39]
[39] Affidavit of Mr Stephens PAS 34 at 590.
The Appeals Committee expressed the view that matters concerning the administration of the application 'were outside the scope of this investigation and not relevant to the consideration of the environmental factors pertaining to this appeal'.[40] AMG contends that the Minister was advised that he had to exclude from consideration any matter that was not related to environmental considerations. AMG relies on a note made by the Appeals Committee, for briefing the Minister, that the weighing of social and economic considerations against environmental considerations was 'not for the Appeals Committee'.[41] Those comments do not support the further finding that the Minister was advised, or believed, that social and economic considerations could not or should not be considered in his decision.
[40] Affidavit of Mr Stephens PAS 34 at 585.
[41] Affidavit of Mr Stephens PAS 34 at 612 - 613.
In any event, the social and economic considerations now relied on by AMG were not an issue in the appeal. There is no error disclosed by ground 1.1.
Ground 1.2
AMG submits that the Minister erred in law by failing to await the outcome of a decision by the delegate of the Commonwealth Minister in respect of a 'controlled action' under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) and to have regard to that decision.
The Environmental Protection and Biodiversity Conservation Act provides for bilateral agreements between the Commonwealth and State or self-governing Territory that:
(a)protect the environment; and
(b)promote the conservation and ecologically sustainable use of natural resources; and
(c)ensure an efficient, timely and effective process for environmental assessment and approval of actions; and
(d)minimise duplication in the environmental assessment and approval process through Commonwealth accreditation of the processes of the State or Territory (and vice versa).[42]
[42] Environmental Protection and Biodiversity Conservation Act s 44.
It is not disputed that AMG requested to have the clearing permit application assessed separately from any application to the Commonwealth, and withdrew the request for assessment under the bilateral agreement.[43]
[43] Affidavit of Mr Grainger, sworn 14 February 2020 [13] ‑ [18].
AMG does not contend that, at any time, it requested the consideration of its appeal be deferred pending assessment of its application to the Commonwealth. Nor did it rely on its application to the Commonwealth in the appeal.
The contention in ground 1.2 discloses no error.
Ground 1.3
AMG alleges error in the Minister failing or refusing to deal with the proposed offset of 106 ha of native vegetation. The ground has three particulars:
1.3.1The proposed offset was an intrinsic part of the clearing permit application which cannot be disregarded;
1.3.2The refusal to have regard to the proposed offset was an erroneous application of the EPA Offsets Policy and Guidelines by the Respondent;
1.3.3Alternatively, to the extent that the EPA Offsets Policy requires the exclusion of consideration of a proposed offset, that Policy is contrary to the requirements of the [Environmental Protection Act] for the entire merits of the clearing permit application to be considered.
In its Appeal Report, the Department said that the applicability of offsets was to be determined on a project by project basis. The significant residual impacts associated with clearing Area 1 could be counterbalanced with an appropriate offset, but an offset was not appropriate to counterbalance the significant residual environmental impacts identified from the proposed clearing of Area 2.[44]
[44] Affidavit of Mr Stephens PAS 7 at 40.
The Minister did not disregard the proposed offset, or find that the policy required that he exclude it from consideration. The Minister outlined the environmental values of the area proposed to be cleared, including habitat for black cockatoos, possible habitat for other native species, and the extent of loss of native vegetation in the coastal plain and within a 10 km radius of the property. The decision then dealt with the issue of ecological linkage. With regard to the proposed offset, the Minister said:
Taking into account the values identified in respect to the entire application area, the Minister believed DWER was justified in forming the view that an offset was not appropriate in this instance.[45]
[45] Affidavit of Mr Stephens PAS 35 at 617.
The allegation of failure to have regard to the proposed offset as a mandatory relevant consideration cannot be sustained.
AMG also alleged that the Minister fettered his discretion by relying upon erroneous advice from the Appeals Committee about the application of the Environmental Offsets Policy. There is no support for that contention in the terms of the Minister's decision, which referred directly to the environmental values of the area and whether the proposal for an offset was suitable to counterbalance the residual impacts of the area proposed to be cleared.
Ground 1.4
Ground 1.4 alleges that the Minister erred in relying upon the findings and conclusions in the Appeals Committee Report that the SWREL Report[46] correctly classified the Jackson Block in the Category 1(a) proximity category so as to form a part of an ecological linkage.
[46] South West Regional Ecological Linkage Technical Report.
The SWREL Technical Report[47] was prepared in September 2009. The South West Regional Ecological Linkages were described as a series of regionally significant ecological linkages across the South West region. 'Ecological linkage' was defined as: 'a series of (both contiguous and non-contiguous) patches which, by virtue of their proximity to each other, act as stepping stones of habitat which facilitate the maintenance of ecological processes and the movement of organisms within, and across, a landscape'.[48]
[47] Affidavit of Mr Stephens PAS 13.
[48] Affidavit of Mr Stephens PAS 13 at 303.
The Report repeatedly emphasised, as a caveat:
Ecological linkages are just one measure of the biodiversity conservation value of a patch of native vegetation. Consideration of the proximity value of an ecological linkage is not intended to replace the need to consider the other biodiversity conservation values of the patch.[49]
[49] Affidavit of Mr Stephens PAS 13 at 303, 305, 328, 382.
There was clearly a disagreement between AMG and the Department (and ultimately the Appeals Committee) on factual matters relating to the Western Power transmission corridor, and the correct interpretation of the SWREL Report.
AMG contended that the application area needed to be touching the access line of the SWREL to fall within proximity analysis group 1(a). It said that this did not occur because the Western Power transmission corridor was located between the application area and the SWREL axis. AMG contended that the ecological linkage was of reduced significance for the whole of the application area as a result of this corridor of cleared land.
The Department, in its Appeal Report, said:
Axis lines in the SWREL Report are used to identify patches of remnant vegetation with high connectivity or linkage value, with the emphasis for biodiversity planning and conservation on the protection and management of patches identified using the access linkage lines, rather than within the area defined by the line itself. There is native vegetation contiguous from the mapped SWREL linkage to Buller Nature Reserve (located approximately 240 m south of the Application Area), Myalup State Forest (approximately 8.8 km west) and Hamel State Forest (approximately 7.3 km east). Given the Application Area is located within this contiguous native vegetation, the Application Area falls within proximity analysis group 1(a) as the patch of vegetation of which it is a part has an edge touching the linkage.
The DWER acknowledges that the Western Power transmission powerline corridor and a previously mined sand extraction area are located between the western boundary of the Application Area and the SWERL Axis Line. The DWER notes that the transmission powerline corridor has not been fully cleared and that a 50 m wide corridor remains, therefore, the area retains the proximity analysis group 1(a) status. … [The] Application Area forms part of a larger remnant of vegetation that is linked by contiguous vegetation to adjacent or nearby conservation areas and therefore forms part of a regionally significant ecological linkage.
The DWER notes that Area 1 has cleared land on either side, with approximately 80 m cleared on the west between the contiguous native vegetation and Area 1. Given the cleared land and low quality fauna habitat, the DWER considers that the proposed clearing of Area 1 will still impact the linkage, but the impacts are not considered to be as significant as the proposed clearing of Area 2.[50]
[50] Affidavit of Mr Stephens PAS 7 at 36 - 37.
The Appeals Committee considered AMG's claims and the diverging views of AMG and the Department in its consideration of ground 6 of AMG's appeal. The Appeals Committee concluded:
In addressing the issue of connectivity and the relationship of the application area to the SWREL axis line the applicant has adopted a narrow interpretation of the ecological linkage concept and the identification of axis lines through the region. As described in the DWER Assessment Report and in the SWREL Technical Report itself, the axis lines have no inherent importance but are simply a means to identify patches of vegetation that provide degrees of ecological linkage.
…
Although the Technical Report sets out a scale of connectedness through the use of proximity analysis categories, the approach that the report takes suggests that these should not necessarily be relied on in a strictly prescriptive manner but should be regarded as tools to identify and assess the significance of patches of remnant vegetation and their relative importance in maintaining regional linkages.
In relation to the proposed clearing, it is clear from an examination of the aerial photography that the northern edge of the 14 ha area and the Jackson Block are part of a patch of vegetation that forms a contiguous regional link to the north-east. Similarly the regional ecological link continues through the Buller Nature reserve to the south-west.
Even a narrow interpretation of the SWERL report would classify the Jackson Block in the 1(a) proximity category because the aerial photography and on ground observation, shows that the cleared area of the Western Power corridor is significantly less than 100m wide. It is also the case that all of the corridor may be cleared on [an] annual basis, considerable regrowth can occur that provides a vegetated linkage for at least some parts of the year.
It is understandable that the appellant would question the importance of the application area to the regional linkage given the apparent isolating factors such as the powerline corridor, the adjoining waste centre, the adjoining farmland and the previous unremediated sand extraction pits. However, a broader approach to the question has the subject area clearly part of the patch of bushland within a regional linkage. Clearing the application area would not sever the regional linkage, however it would make the linkage patch smaller and expose to edge effects a greater area that is in better condition.[51]
[51] Affidavit of Mr Stephens PAS 34 at 602. Emphasis added.
Following that analysis, the Appeals Committee considered the application of clearing principal (h), and concluded:
Black cockatoos are known to range over many kilometres to forage for food, perhaps as a result of the widespread clearing in the south‑west of the State since European settlement. It seems apparent that for black cockatoos the application area is part of a larger native bushland patch that provides a link to the Buller Nature Reserve less than one kilometre away. The cleared powerline corridor would not be a barrier to black cockatoos and to clear the application area would reduce the forage available.
It seems reasonable to conclude that clearing the 14 ha of bushland would negatively affect the environmental values of the Buller Nature Reserve by reducing the forage and nesting of opportunities available to black cockatoos and by reducing the bushland available to other species that may travel between the remnant bushland patches in the locality.[52]
[52] Affidavit of Mr Stephens PAS 34 at 603.
In his decision, the Minister referred to the competing views and said:
In considering this issue, the Appeals Committee acknowledged that factors such as the powerline corridor, the adjoining landfill, the adjoining farmland and the previous unremediated sand extraction pits may support the notion that the ecological linkage is not maintained. However, the Committee found that the subject area is clearly part of the patch of bushland within a regional linkage.
Based on the information available, the Minister agreed with the Appeals Committee that while clearing the application area would not sever the regional linkage, it would make the linkage patch smaller and expose to edge effects a greater area that is in better condition. As such, the Minister was of the view that DWER appropriately considered ecological linkages in the assessment of the proposal.
On the related issue of possible impacts to Buller Nature Reserve, the appellant argued that there is no connectivity between the area proposed to be cleared and the Reserve, and as such, the clearing should be approved. In considering this issue, the Appeals Committee reiterated its findings in respect to the habitat values of the area proposed to be cleared, and found that it was reasonable to conclude that the proposed clearing would negatively affect the environmental values of the Buller Nature Reserve by reducing foraging and nesting opportunities available to black cockatoos and by reducing the bushland available to other species that may travel between the remnant bushland patches in the locality. The Minister concurred with the Appeals Committee's advice in this regard, and as a result, the Minister considered that DWER adequately considered this matter in assessing the proposal.[53]
[53] Affidavit of Mr Stephens PAS 35 at 616.
The challenge to the Minister's decision in ground 1.4 fails for three reasons.
First, on my reading of the Appeals Committee Report and the Minister's decision, the Minister did not rely on a finding that DWER correctly classified the Jackson Block in the Category 1(a) proximity category. The Appeals Committee and the Minister adopted a broader approach to the effects of the proposed clearing. That approach is consistent with the caveat in the SWREL Report that consideration of proximity value 'is not intended to replace the need to consider the other biodiversity conservation values'.
Second, and perhaps least importantly, AMG has not shown that the classification of the Jackson Block was wrong. I say least importantly because the merits of the decision are not for this court.
Third, even if the Minister made the alleged factual error, it is not a ground for review. The limits of a court's role in judicial review proceedings has long been settled. In the frequently cited words of Brennan J in Attorney General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[54]
[54] Attorney General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35 ‑ 36.
AMG submitted in support of ground 1.4 that the reliance on the 'incorrect classification of the Jackson Block' was unreasonable and 'such a fundamental erroneous finding' that it vitiated the exercise of the Minister's discretion. There can be facts which, within the particular statutory scheme, are jurisdictional. That is, they constitute criteria which must be satisfied to enliven the power of the decision-maker to exercise a discretion; or which, if satisfied, mandate a particular outcome.[55] But describing a factual finding as 'fundamental' does not advance the position legally unless it is in relation to a fact that, on the proper construction of the relevant Act, is a legal criterion for making a lawful decision. The statutory scheme for appeals under pt VII does not make the correct finding of the proximity category a condition of the lawful exercise of the Minister's power.
Ground 1.5
[55] Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 [28].
Ground 1.5 alleges error in failing to reconsider the clearing permit application afresh on appeal as a review de novo on the merits of the application (not limited to determining the grounds set out in the appeal) and failing to have regard to the entire merits of the application.
This ground wholly depends on AMG's contention regarding the nature of the appeal. On my conclusions regarding the nature of the appeal from a decision under pt V, the ground fails.
Ground 2
Ground 2 alleges that, having regard to the matters in ground 1.1 to 1.5, the decision of the Minister was tainted by unreasonableness which vitiated the exercise of his discretion.
The allegation of unreasonableness is an allegation of legal error - an abuse of power in the exercise of the discretion.[56] It is not a ground permitting a challenge on the merits of a decision:
… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.[57]
[56] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 [39].
[57] Minister for Immigration and Citizenship v SZMDS [131].
AMG has not made out any of its individual grounds.
The decision of the Minister has not been shown to be in any way lacking in intelligible justification. The Minister was required by s 109(3)(b) to make his decision having regard to the recommendation of the Appeals Committee. His decision to refuse the appeal is amply supported by the material on which he relied.
If it is relevant, AMG has not shown that the material before the Minister - either the report provided pursuant to s 106 or the Appeals Committee Report - was so flawed that the Minister could not rationally determine the appeal having regard to them.
Conclusion
None of the grounds of review has been established. The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson11 JUNE 2020
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