Erujin Pty Ltd v Jacob

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ERUJIN PTY LTD -v- JACOB [2018] WASCA 212

CORAM:   MARTIN CJ

BUSS P

BEECH JA

HEARD:   15 NOVEMBER 2017 & 8 MAY 2018

DATE OF FINAL

SUBMISSIONS       :   22 MAY 2018

DELIVERED          :   30 NOVEMBER 2018

FILE NO/S:   CACV 23 of 2017

BETWEEN:   ERUJIN PTY LTD

Appellant

AND

THE HONOURABLE ALBERT JACOB

First Respondent

THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT REGULATION

Second Respondent

KELLY FAULKNER

Third Respondent

FILE NO/S:   CACV 24 of 2017

BETWEEN:   ERUJIN PTY LTD

Appellant

AND

THE HONOURABLE ALBERT JACOB

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   TOTTLE J

Citation: ERUJIN PTY LTD -v- JACOB [2017] WASC 35

File Number             :   CIV 2096 of 2015, CIV 2875 of 2015


Catchwords:

Administrative law - Application for clearing permit under the Environmental Protection Act 1986 (WA) - Clearing Principles - Chief Executive Officer refused the appellant's application - Minister dismissed the appellant's appeal - Whether the Chief Executive Officer, the Appeals Convenor or the Minister misapplied relevant provisions of the Act - Whether the appellant was denied procedural fairness in its appeal to the Minister

Legislation:

Environmental Protection Act 1986 (WA), s 51A, s 51C, s 51E, s 51H, s 51I, s 51O, s 51P, s 101A, s 106, s 107, s 107B, s 109, sch 5

Result:

CACV 23 of 2017
Appeal dismissed

CACV 24 of 2017
Appeal dismissed

Category:    B

Representation:

CACV 23 of 2017

Counsel:

Appellant : Mr K M Pettit SC & Ms L E Rowley
First Respondent : Ms M J Elliott & Mr P D Spragg
Second Respondent : Ms M J Elliott & Mr P D Spragg
Third Respondent : Ms M J Elliott & Mr P D Spragg

Solicitors:

Appellant : Rowley Legal
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia

CACV 24 of 2017

Counsel:

Appellant : Mr K M Pettit SC & Ms L E Rowley
Respondent : Ms M J Elliott & Mr P D Spragg

Solicitors:

Appellant : Rowley Legal
Respondent : State Solicitor for Western Australia

Case(s) referred to in decision(s):

Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Duncan v Independent Commission against Corruption [2016] NSWCA 143

Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309

Graham v Baptist Union of New South Wales [2006] NSWSC 818

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Marsh v Australian Capital Territory [2014] ACTSC 81; (2014) 288 FLR 116

Minister for Immigration and Border Protection v WZARH [2015] HCA 40;

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Details
Case
[2018] WASCA 212
Decision Date

CaseChat Overview and Summary

Erujin Pty Ltd sought judicial review of a decision by the Minister for Environment of Western Australia to dismiss an appeal against a refusal by the Chief Executive Officer of the Department of Environment Regulation (DER) to grant a clearing permit under the Environmental Protection Act 1986 (WA). The applicant sought to clear up to 13 hectares of native vegetation for pasture and dam expansion. The CEO had refused the application on the basis that it did not comply with several clearing principles. Erujin appealed to the Minister, who dismissed the appeal. Erujin argued that the Minister's decision was flawed for various reasons, including that the Minister did not properly consider the evidence, misapplied the clearing principles, and denied Erujin procedural fairness.

The court considered whether the Minister's decision was legally flawed. This involved examining whether the Minister properly interpreted and applied the clearing principles, whether the decision-making process was procedurally fair, and whether the Minister considered all relevant evidence. The court also considered whether the Appeals Convenor's report, which was prepared for the Minister, was compliant with the requirements of the Act. The court found that the Minister's decision was not legally flawed, as the Minister had properly exercised their discretion and considered the evidence before them. The court also found that the Appeals Convenor's report was compliant with the Act, as it included an appraisal of the evidence and the Appeals Convenor had properly exercised their discretion.

The court dismissed the application for judicial review. The Minister's decision to dismiss Erujin's appeal was upheld, and Erujin's application for a clearing permit was denied. The court found that the Minister had properly interpreted and applied the clearing principles, and that the decision-making process was procedurally fair. The court also found that the Appeals Convenor's report was compliant with the Act, as it included an appraisal of the evidence and the Appeals Convenor had properly exercised their discretion. As a result, Erujin's application for a clearing permit was denied, and the CEO's decision to refuse the application was upheld.

Orders

Orders of the court

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Background

Background to the litigation

The Appeals Convenor's Report of 21 May 2014 to the Minister was accompanied by a document headed 'Appeal Summary Sheet' which stated:BackgroundThis report relates to an appeal lodged by Erujin Pty Ltd in objection to the refusal of the Department of Environment Regulation (DER) to grant clearing permit CPS 5738/1 (clearing permit). Erujin Ply Ltd applied to clear up to 13 hectares (ha) of native vegetation on Lot 50 Kalgan Road, City of Albany, for the purposes of pasture and dam expansion.Grounds of appealThe applicant submitted that the DER erred in its decision to refuse the clearing permit, specifically with regard to its assessment of clearing principles (a) high level of biological diversity; (b) significant habitat for fauna indigenous to Western Australia; (e) significant as a remnant of native vegetation in an extensively cleared landscape, and (h) adjacent or nearby conservation areas.Appeal findings•The DER assessed the proposed clearing against the clearing principles and found that the clearing is at variance to principles (a), (b), (e), and may be at variance to clearing principle (h), listed in Schedule 6 of the EP Act.•The DER noted that the application area falls within strategic zone B of the Western Australian South Coast Macro Corridor Network where zone B cells were identified as having large areas (greater than 30 ha) of woody vegetation and protected areas providing habitat linkages to two confirmed areas of western ringtail possum habitat within the property.•Advice received from WA Museum at officer level confirmed the DER's advice regarding the environmental values of the site under appeal.•Advice received from the Department of Parks and Wildlife at officer level noted that given the decrease in western ringtail possum populations in other parts of the South West, such as Manjimup and Dunsborough/Busselton, western ringtail possum populations in and around Albany may play an increasingly critical role in the survival of the species.•The application area falls within a highly cleared landscape, and contains vegetation that may be of significance for four listed fauna species, including Carnaby's cockatoo, Baudin's cockatoo, red-tailed forest cockatoo, and western ringtail possum. The Appeals Convenor's Report outlined under headings a number of relevant matters, including the position adopted by the CEO in the CEO Assessment Report and the grounds on which the appellant submitted in its letter dated 6 February 2014 that the Minister should overturn the CEO's decision to refuse the application for a clearing permit. The grounds of appeal were summarised in the Appeals Convenor's Report as follows:The [appellant] submitted that the [CEO] erred in [his] decision to refuse the clearing permit, specifically with regard to [his] assessment of clearing principles (a), (b), (e) and (h). The [appellant] was concerned that the [CEO's] assessment of clearing principle (a) incorrectly included fauna within the assessment of biodiversity; that the application area does not constitute significant habitat for fauna under clearing principle (b); that the application area does not constitute a significant remnant within an extensively cleared landscape under clearing principle (e); and that the [CEO's] assessment of the current application is inconsistent with [his] assessment of a prior application with regard to the impact of the clearing on nearby conservation areas [under clearing principle] (h).The [appellant] contended that the [CEO's] interpretation of these clearing principles was incorrect, and led to an erroneous decision to refuse the clearing permit.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ground 1 alleges:In ruling as not invalid the decision (the Minister's Decision) by the First Respondent (the Minister) under s 107(2) of the Environmental Protection Act 1986 (EP Act) to dismiss an appeal (the Appeal) by the Appellant (Erujin) from a refusal pursuant to s 51E(5)(b) by the CEO of [Erujin's] application under s 51E(1) for a permit to clear native vegetation (the Application), the learned trial Judge erred in law by failing to rule that each of the following, alternatively some or all of the following collectively, invalidated the Minister's Decision for lack of compliance with the EP Act:1.1 The Appeals Convenor's and the Minister's acceptance that the proper interpretation [of] Clearing Principle (a), for the purposes of s 51O(2) ‑ (3) and clause 1 of Schedule 5 of the EP Act (the Clearing Principles) is that 'biological diversity' includes fauna.1.2The Appeals Convenor's and the Minister's acceptance that the proper interpretation [of] Clearing Principle (e), for the purposes of s 51O(2) - (3) and clause 1 of Schedule 5 of the EP Act is that 'significant as a remnant of native vegetation' includes fauna considerations.1.3The Minister's reliance on a report prepared pursuant to s 106(l)(d) EP Act by the Appeals Convenor, which report was not compliant with the EP Act because:1.3.1[The] Appeals Convenor's report omitted an appraisal or summary of, and a copy of, the report of Dr Mattiske, which report formed part of the exercise of the appellant's statutory right to appeal, in circumstances that:(a)Dr Mattiske's investigation for her evidence and report constituted only expert investigation of matters and the principal expert opinion on matters relevant to the Application; and(b)Dr Mattiske's report included the following relevant to Clearing Principles (a), (b), (e) and (h);(i)Of the 13.24 ha within the Application area, only 0.06 ha was 'good' and the rest 'degraded' and that 'good' is below middle-order condition, surpassed by 'pristine', 'excellent' and 'very good', and only 0.003% of remaining 'vegetation Unit 10' are to be cleared;(ii)The Application was unlikely to be at variance with Clearing Principle (a), for reasons she gave;(iii)No tree hollows suitable for cockatoo nesting were affected by the Application;(iv)The clearing proposed by the Application is likely to have minimal impacts on the biological values in the area;(v)The Application was unlikely to be at variance with Clearing Principle (b), for reasons she gave;(vi)The Application was unlikely to be at variance with Clearing Principle (e), for reasons she gave; and(vii)The Application was unlikely to be at variance with Clearing Principle (h), for reasons she gave.1.3.2[T]he Appeals Convenor's report, in reporting to the Minister that the Application was at variance with Clearing Principles (a), (b) and (e), omitted reporting the matters in paragraph (b)(i) above, and instead reported that 'The DER specifically found that the vegetation is in degraded to good condition'.1.3.3Where Dr Mattiske's report or the Appeal grounds addressed issues, the Appeals Convenor's report failed to include findings of fact and opinion on those issues independently of the findings made by the CEO and the Department (DER) of which the CEO is chief executive officer, but instead:(a)adopted, without assessment, DER's views that the Application was at variance with each of Clearing Principles (a), (b), (e) and may be at variance with Clearing Principle (h);(b)adopted, without assessment, DER's opinion on the interpretation of Clearing Principle (a);(c)as to Clearing Principle (a), deferred to DER assessments of remaining vegetation; significance of the presence of cockatoos and a macro corridor; and the presence of a critical habitat for (unnamed) fauna.(d)As to Clearing Principle (b), deferred to DER's assessments that the Application was at variance with Clearing Principle (b) in that certain fauna species had been recorded within 10 km of the Application area and formed a 'significant' habitat for them and other species; and the Application area formed part of a regionally significant ecological linkage.(e)As to Clearing Principle (e), deferred to DER views that the Application area was 'significant as a remnant of native vegetation';(f)As to Clearing Principle (h), deferred to DER views that 10 km was an appropriate quantification of 'adjacent or nearby'.

Ratio Decidendi

Legal Principle Established

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