Conservation Council of WA Inc v CEO, Department of Water and Environmental Regulation
[2022] WASC 202
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CONSERVATION COUNCIL OF WA INC -v- CEO, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION [2022] WASC 202
CORAM: HILL J
HEARD: 8 JUNE 2022
DELIVERED : 16 JUNE 2022
FILE NO/S: CIV 2273 of 2021
BETWEEN: CONSERVATION COUNCIL OF WA INC
Applicant
AND
CEO, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION
First Respondent
CARON GOODBOURN as delegate of THE CEO PURSUANT TO THE ENVIRONMENTAL PROTECTION ACT 1986 (WA)
Second Respondent
WOODSIDE BURRUP PTY LTD
Other Party
Catchwords:
Judicial review – Practice and procedure – Application for leave to adduce expert evidence – Whether expert evidence regarding greenhouse gas emissions should be permitted – Whether expert evidence relevant to grounds of review - Turns on own facts
Judicial review – Practice and procedure – Application for leave to amend further and better particulars – Turns on own facts
Legislation:
Environmental Protection Act 1986 (WA)
Result:
Application for leave to adduce expert evidence refused
Application for leave to amend granted in part
Category: B
Representation:
Counsel:
| Applicant | : | K M Pettit SC & D R Chandler |
| First Respondent | : | J E Shaw & P D Spragg |
| Second Respondent | : | No appearance |
| Other Party | : | S Penglis SC & M Georgiou |
Solicitors:
| Applicant | : | Environmental Defender's Office Of Western Australia |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
| Other Party | : | Allens |
Case(s) referred to in decision(s):
Arnold v Minister Administering the Water Management Act 2000 [No 6] [2013] NSWLEC 73
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Australian Pacific LNG Pty Ltd v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124
Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446
Changhshu Longte Grinding Ball Co, Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science [2017] FCA 1114
Falconer v Chief Health Officer [No 2] [2022] WASC 29
Jacob v Save Beeliear Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381
MZAPC v Minister for Immigration & Border Protection [2021] HCA 17; (2021) 390 ALR 590
Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285
Randren House Pty Ltd v Water Administration Ministerial Corporation [No 3] [2018] NSWLEC 106
Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231
Ross v Lane [2021] NSWLEC 61
HILL J:
In these proceedings, the applicant challenges the second respondent's decision to grant an application for Works Approval for the construction of a second LNG train at the Pluto LNG project.
By summons dated 9 May 2022, the applicant sought leave to adduce expert evidence from Professor Will Steffen and Professor Penny Sackett at the hearing of its application for judicial review. The application is currently listed for hearing before me on 2 and 3 August 2022. A copy of the proposed evidence of each of these experts was filed in support of the application (Proposed Expert Reports).[1] Each of the Proposed Expert Reports provides opinion evidence on climate change and greenhouse gas emissions, including changes that have occurred between December 2007, when the Pluto LNG Project first received ministerial approval, and May 2021, when the decision the subject of the proceedings was made.
[1] Affidavit of William Lee Steffen filed 9 May 2022, 'WLS1'; Affidavit of Penny Diane Sackett filed 9 May 2022, 'PDS1'.
Each of the first respondent and the Other Party (Woodside) opposed the application. This was primarily on the basis that the Proposed Expert Reports are not relevant to the grounds of the application. There was also an objection to the breadth of the evidence sought to be adduced in the Proposed Expert Reports. The first respondent and Woodside expressed concern as to the impact the admission of the Proposed Expert Reports in their current form would have on the length and timing of the hearing and contend this is disproportionate to any benefit these reports may have.[2]
[2] First respondent's submissions [2]; Other Party's submissions [30] - [32].
There was also a dispute between the parties in relation to the adequacy of particulars of the grounds of review provided by the applicant. The applicant, by letter dated 7 June 2022, sought leave to file further and better particulars of its grounds in terms of the Consolidated Amended Further and Better Particulars of the same date (Consolidated Particulars). The application was opposed only in relation to [13] of the Consolidated Particulars.
For the reasons that follow, I consider the application for leave to adduce expert evidence should be refused. In relation to the application for leave to file further and better particulars of its grounds of review, I do not consider that leave ought to be granted to amend the particulars to include [13].
Factual background
On 23 May 2022, the parties filed a statement of agreed facts. The following summary is taken from this statement.
In about April 2006, Woodside Energy Ltd (the parent company of Woodside) (Woodside Energy) referred a proposal described as the 'Pluto LNG Development (Site B Option), Burrup Peninsula' (Proposal) to the Environmental Protection Authority (EPA) pursuant to s 38(1) of the Environmental Protection Act 1986 (WA) (Act). In December 2006, Woodside Energy prepared and submitted a Public Environmental Review in relation to the Proposal.
In about July 2007, the EPA published a report of its findings and recommendations in relation to the Proposal.
On 24 December 2007, pursuant to s 45(5) of the Act, the Minister for the Environment (Minister) published Ministerial Statement 757 (MS 757) for the implementation of the Proposal. MS 757 set out the conditions which applied to the Proposal. These conditions included a requirement that Woodside Energy develop a Greenhouse Gas Abatement Program (GGAP) prior to the commencement of construction (condition 12).
On 20 June 2011, Woodside Energy submitted revision 2 of the GGAP to the EPA which was approved by the Minister in August 2011 (2011 GGAP). The 2011 GGAP only concerned greenhouse gas emissions from the first LNG train and did not address emissions from the second LNG train, which was contemplated in the Proposal.
MS 757 authorised the development of facilities for the development of the Pluto gas field and the processing and export of the gas at a liquefied natural gas plant. The facilities were to be constructed on the Burrup Peninsula (Pluto LNG Facility). The authorisation included the development of two LNG processing trains with a total nominal production capacity of 12 million tonnes per annum of LNG.
On 17 October 2019, Woodside submitted an application to the Department of Water and Environmental Regulation (DWER) for works approval for the construction, commissioning and time‑limited operation of the second LNG train at the Pluto LNG Facility (Pluto Train 2).
On or about 15 April 2021, Woodside Energy submitted revision 3 of the GGAP to DWER (2021 GGAP). This updated the 2011 GGAP to include the construction and operation of Pluto Train 2.
On 26 May 2021, the second respondent, as delegate of the first respondent, granted the works approval application (Works Approval). The Works Approval authorised the construction, commissioning and time‑limited operation of Pluto Train 2 in accordance with its terms.
Subsequent to this approval, in or about June 2021, the Minister requested the EPA inquire into and report on the matter of changing condition 12 of MS 757 to align it with contemporary greenhouse gas conditions reflecting the content of 2021 GGAP. This inquiry has not yet been completed, nor has a report been provided to the Minister under s 46(6) of the Act.
Procedural background to application
On 25 November 2021, the applicant filed this application for judicial review. On 26 November 2021, the matter was admitted to the commercial and managed cases list of the court and was initially managed by Justice Allanson.
At the first substantive directions hearing in the matter in February 2022, the applicant sought leave to file expert evidence. At that stage, the expert evidence which it sought to adduce was limited to generally available scientific publications relating to the effects of climate change occasioned by greenhouse gas emissions in the quantities proposed by the relevant development and the scientific consensus between the publication of MS 757 and the decision the subject of the application.
At the hearing, the applicant did not press for orders for expert evidence. Counsel who appeared for the applicant explained the background to the application, namely that the proposed expert evidence 'goes to the ground of unreasonableness'.[3] The applicant agreed to provide further and better particulars of ground 3 of its application, following which further conferral would occur. At that stage, Allanson J expressed a preliminary view that any application 'would be best made with the proposed report or a draft of the proposed report' so that the question of both leave and the relevance of any report could be addressed on the one occasion.[4]
[3] ts 4.
[4] ts 5.
At that hearing, senior counsel for Woodside expressed the view that any such expert evidence was inadmissible but that if leave was given, he doubted Woodside would call its own experts.[5]
[5] ts 12.
On 14 March 2022, orders were made for the filing of any application for leave to adduce expert evidence by 9 May 2022. The orders required the applicant to file, as part of the application, the draft proposed expert evidence. At that stage, senior counsel who appeared for Woodside indicated to the court that if leave were granted to the applicant to adduce expert evidence, Woodside did not intend to file any responsive evidence.
Legislative framework
The object and principles of the Act are set out in s 4A of the Act. This section makes plain that the object of the Act is to protect the environment of the State, having regard to principles specified in that section. These are the precautionary principle, the principle of intergenerational equity, the principle of the conservation of biological diversity and ecological integrity, principles relating to improved valuation, pricing and incentive mechanisms, and the principle of waste minimisation. Particulars of each principle are set out in the Act.
The Act also defines the objectives of the EPA. Section 15 states that its objectives are to use its best endeavours to protect the environment and to prevent, control and abate pollution and environmental harm.
Part III of the Act addresses the preparation and publication of environmental protection policies and pt IV deals with environmental impact assessments. The Act distinguishes between a 'strategic proposal' and a 'significant proposal'. Under s 37B(1) of the Act, a 'significant proposal' is defined to mean 'a proposal likely, if implemented, to have a significant effect on the environment and includes a significant amendment of an approved proposal'.
Under s 38(1) of the Act, any person can refer a significant proposal to the EPA. Where a proposal is referred to the EPA, pursuant to s 39(1) of the Act, the EPA is required to decide whether or not to assess the proposal. If the EPA decides to assess the proposal, it is required, under s 44(1) of the Act, to prepare a report on the outcome of its assessment of the proposal and give the report to the Minister. The assessment report is required to set out:[6]
(a)what the Authority considers to be the key environmental factors identified in the course of the assessment; and
(b)the Authority's recommendations as to whether or not the proposal may be implemented and, if it recommends that implementation be allowed, as to the conditions and procedures, if any, to which implementation should be subject.
[6] Environmental Protection Act 1986 (WA) s 44(2).
Section 44(3)(a) of the Act requires the report to be published.
Section 45 of the Act sets out the procedure for the decision by the Minister as to whether or not the proposal may be implemented and if so, on what conditions.
Part V of the Act concerns environmental regulation. Division 3 specifically addresses the regulation of 'prescribed premises' and includes the granting of works approvals and licences. Pursuant to s 52 of the Act, an occupier of a prescribed premises (which includes premises on which natural gas is extracted, premises on which natural gas is processed, and premises on which electrical power is generated using a fuel such as natural gas) is required to hold a works approval before carrying out any work on the premises and, pursuant to s 56, to obtain a licence for any emissions from the premises.
Section 54 of the Act sets out the requirements for applying for a works approval and the obligations of the EPA in assessing the application and deciding whether to grant or refuse the application. It relevantly provides that:
(1)An application for a works approval shall be -
(a)made in the form and in the manner approved by the CEO; and
(b)accompanied by such fee as is prescribed by or determined under the regulations; and
(c)supported by such plans, specifications and other documents and information, including a summary thereof, as the CEO requires.
…
(3)Subject to subsections (4) and (5), the CEO shall, after having taken into account any comments received from any public authority or person from which or whom comments were sought under subsection (2)(b) or (2a) and subject to section 60 -
(a)grant a works approval subject to such of the conditions referred to in section 62 as the CEO specifies in the works approval; or
(b)refuse to grant a works approval.
…
(4)If an application for a works approval made under subsection (1) is related to a proposal which has been referred to the Authority under section 38, the CEO shall not perform any duty imposed on him by subsection (3) -
(a)while any decision‑making authority is precluded by section 41 from making any decision which could have the effect of causing or allowing that proposal to be implemented; or
(b)contrary to, or otherwise than in accordance with, an implementation agreement or decision.
…
(5)If a decision‑making authority makes a decision that has the effect of preventing the implementation of a proposal to which an application for a works approval made under subsection (1) is related, the CEO does not have to perform any duty imposed under subsection (3) while that decision has effect.
Section 60 of the Act sets out the relationship between the works approval or licences and approved policies. It provides that:
(1)The CEO shall in considering an amendment of a licence or an application for a works approval or a licence or for the transfer thereof ensure that the works approval or licence or amendment or transfer thereof is consistent with any approved policy.
(2)The CEO shall not amend or shall refuse to grant or transfer a works approval or licence if he considers that the emission concerned would be inconsistent with any approved policy.
(3)Despite anything in this section -
(a)if the CEO is satisfied that, as a result of environmental circumstances having changed, the environment or an environmental value of the area concerned requires a higher level of protection than would be provided by the standards required by or under any approved policy or by prescribed standards, the CEO may grant or amend a works approval or licence so as to make the works approval or licence subject to conditions which specify standards that are more stringent than those required by or under the approved policy or by prescribed standards;
(b)if the CEO is satisfied that, as a result of the approval under section 31(d) of a new approved policy or as a result of an approved policy as amended being confirmed under section 37, any condition to which an existing works approval or licence is subject is inconsistent with that approved policy, the CEO may amend that works approval or licence to make it consistent with that approved policy.
Pursuant to s 62(1) of the Act, a works approval 'may be granted subject to such conditions as the CEO considers to be necessary or convenient for the purposes of this Act relating to the prevention, control, abatement or mitigation of pollution or environmental harm'. Examples of the kinds of conditions that can be imposed are set out in s 62A of the Act.
Legal principles governing application
It is not in dispute that, while uncommon, the court has power, in appropriate cases, to grant leave to adduce expert evidence on an application for judicial review.[7] In considering the application for leave to adduce expert evidence, the court is required to consider whether the proposed orders would promote the just and timely determination of the action.[8]
[7] Rules of the Supreme Court 1971 (WA) O 56 r 5(2)(d).
[8] Rules of the Supreme Court 1971 (WA), O 1 r 4A and r 4B; see Falconer v Chief Health Officer [No 2] [2022] WASC 29 [15].
On an application for judicial review, the court's function is to adjudicate on the legality of the decision‑making and the conduct of the decision‑maker; it is not a merits review of the decision.[9] Generally speaking, evidence which was not before the decision-maker is not admissible because it is not relevant.[10] However, this depends on the grounds of the application and the particular circumstances of the case.[11]
[9] Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35 - 41 (Brennan J).
[10] Arnold v Minister Administering the Water Management Act 2000 [No 6] [2013] NSWLEC 73 [121]; Randren House Pty Ltd v Water Administration Ministerial Corporation [No 3] [2018] NSWLEC 106 [8] ‑ [9]; Australian Pacific LNG Pty Ltd v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124 [11].
[11] Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446 [442], [457] ‑ [459].
Expert evidence is admissible to assist the court where specialised language and terms are used, of which the court would otherwise be unaware, so that the court can determine whether particular words used in legislation should be given their ordinary and natural meaning or a specialised meaning. Expert evidence may also assist the court to determine the policy and objectives of legislation and to assist in understanding the potential relevance of some of the concepts and provisions in the legislation.[12]
[12] Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231 [107] (Parker J).
On a ground of review of unreasonableness, expert evidence 'should not be encouraged'.[13] However, where the relevant statutory framework incorporates specialist principles and concepts, particularly economic principles and concepts, expert evidence has been admitted.[14]
[13] Changhshu Longte Grinding Ball Co, Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science [2017] FCA 1114 [14].
[14] See, for example, Changhshu Longte Grinding Ball Co, Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science, [14]; Australian Retailers Association v Reserve Bank of Australia; Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381.
If, for example, a ground of review contends that there was a failure to make inquiries where the decision‑maker was under an obligation to do so and those inquiries would have revealed that information was readily available and relevant to the determination, expert evidence may be admissible.[15]
[15] Ross v Lane [2021] NSWLEC 61 [21].
A challenge to a decision on the ground of unreasonableness can encompass contentions that the decision is legally unreasonable, as well as 'outcome' focussed unreasonableness. As was noted by McLure P in Jacob v Save Beeliear Wetlands (Inc):[16]
It is clear from the judgment of the plurality and of French CJ and Gageler J [in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332], that a discretionary decision infected by 'irrationality grounds' such as, inter alia, the failure to take into account relevant considerations, taking into account irrelevant considerations, improper purpose, and serious irrationality in the sense used in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 625, 643 and 648, is legally unreasonable. These are process‑related examples of legal unreasonableness. Otherwise, unreasonableness in the Li sense is 'outcome' focused. That is, legal reasonableness provides the boundaries of the area within which a decision‑maker has a genuinely free discretion: Li [66]. To determine the boundary, regard must be had to the scope, subject matter and purpose of the statutory discretionary power: Li [67].
[16] Jacob v Save Beeliear Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313 [68].
The applicant bears the onus of proof in establishing the facts necessary to make out the errors alleged on the balance of probabilities.[17] The parties seeking to affirm the decision do not need to demonstrate, by way of evidence or inference, the decision was made regularly.[18] This requires the applicant to establish there has been non-compliance with an express or implied condition of the statutory power by the decision-maker and that there is a realistic possibility that the decision which was in fact made could have been different if the non-compliance had not occurred.[19]
[17] Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 [39]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 [67].
[18] Minister for Immigration and Citizenship v SZGUR [67] ‑ [68].
[19] MZAPC v Minister for Immigration & Border Protection [2021] HCA 17; (2021) 390 ALR 590 [2], [30].
As was stated by the plurality in MZAPC v Minister for Immigration & Border Protection:[20]
The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred - as distinct from what would have occurred - had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities. (citations omitted)
[20] MZAPC v Minister for Immigration & Border Protection [38].
Grounds of application for judicial review
The grounds of review are contained in the application filed 25 November 2021. The three grounds on which the decision is challenged are that:
(a)first, the second respondent, under s 54(3) and s 62 of the Act, is required to determine what conditions on a works approval are necessary or convenient to prevent, control, abate or mitigate pollution or environmental harm due to emissions from the premises and to then consider whether to grant approval subject to such conditions. The applicant contends the second respondent failed to do this and, in particular, failed to undertake that consideration in relation to greenhouse gas emissions;
(b)second, in making the decision, the second respondent took into account irrelevant considerations, namely MS 757 and 2011 GGAP; and
(c)third, the second respondent's decision was so unreasonable that no reasonable decision-maker could have made it.
Further and better particulars of each of these grounds have been provided by the applicant. The initial particulars provided in relation to the ground of unreasonableness were that at the time of granting the Works Approval, the greenhouse gas emissions that would arise from the activities authorised by the Works Approval were not regulated in the manner required by s 54(3) and s 62 of the Act and the only contemplated regulation was pursuant to outdated, rather than contemporary, criteria.[21]
[21] Further and better particulars of grounds of review filed 4 March 2022.
Woodside sought further and better particulars of these grounds, which were provided by the applicant on 2 June 2022. It is these particulars that are the subject of the application for leave to amend. The additional particulars provide that different people are statutorily required to address the updated condition 12 and the 2011 GGAP compared to the conditions of the Works Approval. On this basis, the applicant contends it was unreasonable for the second respondent to defer to the other decision‑maker on the conditions that ought be imposed. The applicant also contends the second respondent's reliance on certain policies was legally unreasonable.
The applicant then sets out, at [13], what it contends is the context in which these acts and failures occurred. These matters refer to the greenhouse gases that will be caused by the construction and time‑limited operation of Pluto Train 2, and the change in scientific understanding of the harm caused by the emission of greenhouse gases and the Australian policy and legal commitments on this between 2007 and 2021. The particulars then contend that conditions could have been imposed to significantly reduce these emissions and refer to what is said to be the disparity between Western Australia's actual and projected emissions, as compared to its and Australia's commitments. The particulars conclude by stating:
[8] Action by Australia along with other countries to mitigate greenhouse gas emissions is imperative to avoid further and catastrophic environmental harm.
Woodside objects to the applicant having leave to amend its particulars to include [13] on the basis that it is not a proper particular, as 'context' is not relevant to the determination of the application.
Proposed expert evidence
The applicant sought leave to adduce evidence from two experts: Professor Will Steffen and Professor Penny Sackett. Each of the Proposed Expert Reports broadly cover the same areas, namely the nature and impacts of greenhouse gas emissions; applicable targets; and the development of climate change science from December 2007 until May 2021. Professor Sackett's report also sets out the conditions that, in her view, could have been imposed to prevent or control emissions from Pluto Train 2.
Professor Steffen's report does not address the estimated greenhouse gas emissions from the construction, commissioning and time‑limited operation of Pluto Train 2. The report expresses the author's opinion on the targets of both Western Australia and Australia for limiting climate change. The report then summarises what, in the author's opinion, is required for Australia to meet the climate goals agreed at the 2015 meeting of the Conference of the Parties in Paris (under the United Nations Framework Convention on Climate Change). Professor Steffen expresses the view that the 'proposed Woodside Pluto LNG Project would increase GHG emissions over its 25‑year lifetime when carbon budget analyses show that rapid and deep emission cuts are required'.[22] Professor Steffen expresses the opinion this requires no new fossil fuel developments.[23]
[22] Affidavit of Will Lee Steffen filed 9 May 2022, 'WLS1' [6.18].
[23] Affidavit of Will Lee Steffen filed 9 May 2022, 'WLS1' [6.24].
Professor Sackett's report addresses much of the same matters as Professor Steffen. However, Professor Sackett, at chapters 9 and 10 of the report, specifically considers greenhouse gas emissions from Pluto Train 2. Professor Sackett critiques the 2021 GGAP for not using updated values for global warning potential but using the National Greenhouse and Energy Reporting (Measurement) Determination 2008 and for not including indirect emissions associated with the use of the product by end users, otherwise known as 'Scope 3' emissions. Professor Sackett also considers the impact of Pluto Train 2 on Western Australian and Australian greenhouse gas emission targets over its lifetime operation, which she estimates to be 30 years.[24]
[24] Affidavit of Penny Diane Sackett filed 9 May 2022, 'PDS1' [9.2].
Disposition
At the hearing before me, both the first respondent and Woodside submitted that, if the court gave leave to the applicant to adduce expert evidence in the terms of the Proposed Expert Reports, it is likely they would seek leave to file responsive affidavits and, as a consequence, it is likely the hearing dates in August would not be able to proceed. While I accept this may be the likely outcome of a successful application, if there is a proper basis to grant the application, I do not consider it is in the interests of justice to deny the applicant the opportunity to file expert evidence on that basis alone. For that reason, I turn to consider the grounds on which the applicant sought to adduce the Proposed Expert Reports.
The applicant contends that the Proposed Expert Reports are relevant and necessary for a determination of the issues in this proceeding for three reasons:
(a)to explain the scientific and technical context in which the Works Approval was granted;
(b)to support ground 3, namely that the decision was so unreasonable, no reasonable decision-maker could have made it; and
(c)to enable the applicant to establish the materiality of the second respondent's error.
In oral submissions, senior counsel for the applicant submitted there was a further basis on which the Proposed Expert Reports should be admitted, namely that the applicant was required to prove that constructing and commissioning Pluto Train 2 will produce emissions which cause environmental harm and that it was necessary for the second respondent to turn her mind to what conditions could have been imposed to abate these emissions.[25]
Explanation of scientific and technical terms
[25] ts 34.
I accept that expert evidence may be admissible to assist the court where words used in the relevant legislation have a technical or scientific meaning. However, I do not accept that expert evidence is required to explain the context in which a decision is made.
The applicant did not identify in either its written or oral submissions what scientific and technical terms, phrases, or matters in the relevant Act it contended required the admission of expert evidence. In my view, expert evidence is not required to assist the court to understand the relevant terms used in the Act. As is apparent from the materials before the decision‑maker and the terms of the second respondent's decision, there is no dispute that greenhouse gas emissions are governed by the Act and that conditions can be imposed to require these emissions to be addressed.
Decision was unreasonable
The applicant contends the second respondent's decision was unreasonable in relying on MS 757 and 2011 GGAP to regulate greenhouse gas emissions and in failing to have regard to current scientific evidence and knowledge. In its proposed amended particulars, the applicant refers to a number of matters which are said to provide the 'context' in which the decision was made. These matters are the subject of the Proposed Expert Reports.
The question as to whether the decision maker's reliance on these matters was unreasonable is primarily a matter of statutory construction of s 54 of the Act.
The first respondent submits that, on a proper construction of the Act, the second respondent could not impose a condition on the works approval contrary to MS 757. On this basis, it was contended the first respondent could not impose requirements more stringent than those contained in MS 757 or that had the effect of preventing the implementation of the proposal which had been authorised by MS 757.[26] Counsel for the first respondent submitted that central to the applicant's grounds of review was the legal issue of the proper construction of s 54(3) of the Act, an issue on which expert evidence was not relevant.
[26] First respondent's submissions [12].
I accept that the question as to what matters the second respondent was required to take into account in determining whether or not to grant the application for a works approval turns on the proper construction of s 54 of the Act and, in particular, s 54(4). The proper construction of this section is a question of law.
For that reason, I do not consider that the Proposed Expert Reports are admissible to assist in the determination of this issue.
On their face, neither of the Proposed Expert Reports address the information that was relied upon or known by the second respondent at the time the decision was made. Nor do the Proposed Expert Reports address the facts that the applicant contends should have been found by the second respondent, having regard to the material which was before her or on which she relied. In either of these circumstances, expert evidence may well be relevant.
I also accept that expert evidence could be admissible if the grounds of review (and the Proposed Expert Reports) contended there was a body of expert opinion or knowledge which the second respondent should have been aware of and was required to or ought to have regard to but did not. However, this is not the basis on which the application or the grounds of review are framed.
For these reasons, I do not accept the Proposed Expert Reports are relevant to support ground 3 of the application.
Materiality of any error
The applicant submits, quite correctly, that in the event it establishes the decision of the second respondent was made in error, it is also required to prove on the balance of probabilities that the error was material.
The applicant contends the second respondent was required under s 54 of the Act to consider what conditions on the works approval were necessary to prevent, control, abate or mitigate pollution or environmental harm due to greenhouse gas emissions from the premises and did not do so. At the hearing, this will require the applicant to establish first, the second respondent was required as a matter of law under s 54 of the Act to consider these matters and second, that on the balance of probabilities, the second respondent did not consider these matters in making her decision. The question as to what matters were taken into account by the second respondent will be evident from the decision of the second respondent and the material before her at the time she made the decision. Similarly, if the second respondent took into account MS 757 and 2011 GGAP and these matters were irrelevant to her consideration of the application (which is a question of law), these matters will also be evident from the second respondent's decision and the material before her.
If the applicant is able to establish the errors which it alleges, I consider that, applying the test for materiality set out above at [38], there is a realistic possibility that the decision which was in fact made could have been different. On this basis, I do not consider the applicant requires expert evidence to establish either of these grounds of appeal.
Will Pluto Train 2 emit greenhouse gases and what conditions could have been imposed?
In oral submissions, senior counsel for the applicant submitted the first respondent and Woodside had not admitted the construction of Pluto Train 2 will emit greenhouse gases and that, on this basis, it was necessary for the applicant to prove this on the balance of probabilities. Senior counsel for Woodside objected to this ground being raised in oral submissions without it being raised in conferral or the applicant's written submissions.[27]
[27] ts 62 - 63.
While I accept this ground was not the subject of the applicant's written submissions, ultimately for the reasons that follow, I do not consider this submission assists the applicant. The reasons for the decision of the second respondent set out the matters that were considered in making her decision to grant the application for the Works Approval. At [5] of the decision report, the second respondent addresses modelling and monitoring data, including at [5.1] the air quality impact assessment. This aspect of the report acknowledges that 'CO2 is considered to be a greenhouse gas' and that it is not considered further in the decision report. The decision report notes that Woodside has developed a GGAP which is being updated, as required by condition 12 of MS 757 to include Pluto Train 2.[28]
[28] Affidavit of Timothy James Macknay filed 25 November 2021 'TJM-14', p 1347.
In my view, it is apparent from the decision report that first, in making her decision, the second respondent accepted that CO2 is a greenhouse gas and second, that greenhouse gas abatement from the Pluto Train 2 had not been specifically considered in the decision report as this was to be the subject of a separate report. Accordingly, I do not consider it is necessary for the applicant to prove on the balance of probabilities that the construction of Pluto Train 2 will emit greenhouse gases – this is agreed as is apparent from the decision of the second respondent.
In any event, even if this was a matter which the applicant was required to prove, neither of the Proposed Expert Reports purport to do this. Neither of the experts express an opinion as to what greenhouse gases will be emitted during the construction, commissioning and time-limited operation of Pluto Train 2 or what conditions could have been imposed to abate these. Professor Steffen does not consider the emissions from Pluto Train 2 at all. Professor Sackett express an opinion on the emissions from Pluto Train 2 over the life of the operation of the Project and the conditions that could have been imposed taking into account these emissions. That is, Professor Sackett's report does not address what greenhouse gases will be emitted during its construction, commissioning and time‑limited operation, or what conditions could have been imposed to specifically address these emissions.
For these reasons, I do not consider the Proposed Expert Reports are relevant to the issues on the application. On this basis, I would refuse leave to adduce expert evidence.
Application to amend particulars
By letter dated 7 June 2022, the applicant sought leave to file further and better particulars of its grounds.
In oral submissions, senior counsel for the applicant submitted it was not necessary for the applicant to seek leave to amend its particulars. This is because it was a matter for the applicant to give notice of the basis on which it intended to run its case at the hearing.
While I accept the applicant is entitled to run its case in the way it considers appropriate, it is necessary for the particulars of the ground of review to raise matters that are relevant to the issues for determination.
In this regard, ground 3 of the grounds of review contends the decision of the second respondent was unreasonable. It is apparent from the particulars provided by the applicant that it contends that the decision is both legally unreasonable (ie a process‑related contention of unreasonableness) and that the outcome is unreasonable.[29]
[29] See [36] above.
In considering whether a decision is unreasonable, the court is generally restricted to the material that was before the decision‑maker. Paragraph 13 of the proposed further and better particulars does not contend the matters in the Proposed Expert Evidence was information or material that was before the second respondent. Nor is it contended that these matters were information the second respondent was required to enquire about and did not, nor that these matters are notorious.
For these reasons, I do not consider that the matters set out in [13] raise matters which are relevant to the issues for determination. In my view, matters which are said to be relevant to the context in which a decision is made are not admissible or relevant to the issue of whether the decision of the second respondent was unreasonable. Leave should not be granted to the applicant to amend its particulars to include this paragraph.
Conclusion
For these reasons, the application for leave to adduce expert evidence should be refused. In relation to the application for leave to file further and better particulars of its grounds of review, I do not consider that leave ought to be granted to amend the particulars to include [13].
I will hear from the parties as to the formal orders that should be made and the costs of the application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HW
Associate to the Honourable Justice Hill
16 JUNE 2022
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