Estates 77 Pty Ltd v Minister for the Environment

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FEDERAL COURT OF AUSTRALIA

Estates 77 Pty Ltd v Minister for the Environment [2019] FCA 1427

File number: WAD 286 of 2019
Judges: MCKERRACHER J
Date of judgment: 2 September 2019
Catchwords: ADMINISTRATIVE LAW – application for judicial review of a decision made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) – judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth) – decision of the Minister under s 75(1) of the EPBC Act – whether the Court can consider whether a proposed action is likely to have a ‘significant impact’ on listed threatened species of cockatoo – whether a question of jurisdictional fact
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6

Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 18, 18(3)(b), 18(4)(b), 18A, 67, 68, 69, 70, 70(3), 70(4), 75, 75(1), 87

Judiciary Act 1903 (Cth) s 39B

Cases cited:

Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2008) 166 FCR 54

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135

Greentree v Minister for Environment and Heritage (2005) 144 FCR 388

One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527

Sanders vCity of South Perth [2019] WASC 226

Triabunna Investments Pty Ltd v Minister for Environment and Energy [2019] FCAFC 60

Tsvetnenko v United States of America [2019] FCAFC 74

Western Australian Land Authority  v Minister for Sustainability, Environment, Water, Population and Communities (2012) 291 ALR 52

Date of hearing: 21 August 2019
Date of last submissions: 30 August 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 70
Counsel for the Applicants: Mr P McQueen
Solicitor for the Applicants: Lavan
Counsel for the Respondent: Mr GT Johnson SC with Mr AK Sharpe
Solicitor for the Respondent: Clayton Utz

ORDERS

WAD 286 of 2019
BETWEEN:

ESTATES 77 PTY LTD (ACN 008 688 131)

First Applicant

NOVALEE NOMINEES PTY LTD ACN 111 776 017

Second Applicant
AND:

MINISTER FOR THE ENVIRONMENT

Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

2 SEPTEMBER 2019

THE COURT ORDERS THAT:

1.The respondent prepare a minute to reflect these reasons. 

2.Costs be reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

  1. The applicants apply under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) seeking review of a decision of the Minister for the Environment pursuant to s 75(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act), that the residential development (the Proposed Action) of Lots 635, 739 and 740 on Deposited Plan 202751, Baldivis Road, Baldivis, Western Australia (the Subject Land) is a ‘controlled action’ under the EPBC Act and will require assessment…

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Details
Case
[2019] FCA 1427
Decision Date

CaseChat Overview and Summary

In Estates 77 Pty Ltd v Minister for the Environment, the applicants sought judicial review of the Minister for the Environment’s decision that the proposed action, which involved the rezoning of certain land, was a ‘controlled action’ under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The applicants argued that the Minister did not have jurisdiction to make the decision as the proposed action was not a controlled action under the EPBC Act. The court was required to determine whether the likelihood of a significant impact on listed threatened species was a jurisdictional fact that the court could review when assessing the Minister’s decision under s 75(1) of the EPBC Act.

The court held that the likelihood of a significant impact on listed threatened species was not a jurisdictional fact for the court to review when assessing the Minister’s decision under s 75(1) of the EPBC Act. The court held that the decision of whether a proposed action is likely to have a significant impact on listed threatened species was a matter reserved for the Minister, not the court. The court reached this conclusion by examining the language of the EPBC Act and the legislative scheme in which the power was conferred. The court held that where the criterion was a matter upon which reasonable minds may differ, it was less likely that Parliament intended the criterion to be an objective fact. As the likelihood of a significant impact on listed threatened species involved assessment and value judgments on the part of the decision-maker, it was not a jurisdictional fact that the court could review.

The court dismissed the application for judicial review. The court held that the Minister had jurisdiction to make the decision that the proposed action was a controlled action under the EPBC Act. The court held that the likelihood of a significant impact on listed threatened species was not a jurisdictional fact for the court to review when assessing the Minister’s decision under s 75(1) of the EPBC Act. The court reserved costs.

Orders

Orders of the court

1. The respondent prepare a minute to reflect these reasons.

2. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

There are some matters of background which are desirable to flesh out. I adopt the substance of the applicants’ recitation of facts for present purposes to give context to these reasons, but the facts have not at this stage been formally proved. By the same token, it does not appear that any issue is taken with the applicants’ account of the facts by the Minister, certainly for present purposes. Although the direct involvement of the Minister does not occur until May 2017 in this account. The applicants’ background to the Proposed Action The Subject Land was rezoned ‘Urban Deferred’ pursuant to MRS Amendment 937/33 (South West Corridor Stage B) to the Metropolitan Region Scheme, which amendment became effective on 10 December 1994. Its purpose was to give effect to the proposals in the South West Corridor Structure Plan within the City of Rockingham. At the same time, and as part of the process of MRS Amendment 937/33, the Environmental Protection Authority for the State of Western Australia (the EPA) set a level of ‘Public Environmental Review’ (Assessment Number 838) for certain aspects of proposed MRS Amendment 937/33 and produced EPA Bulletin 746 dated July 1994. The other land use changes proposed by the proposed MRS Amendment 937/33 (including the proposed Urban Deferred zoning for the Subject Land) were to be considered by the EPA at the level of ‘informal review with public advice’. The advice of the EPA was contained in a letter of 5 May 1994 (also annexed as Appendix 5 to EPA Bulletin 746 stated to be ‘not subject to appeal’), included the following:The [EPA] considers that decisions on the use of bushland areas outside Systems Recommendation areas and conservation areas should be made through the planning process, both at the State and local level. The then State Minister for the Environment determined to approve MRS Amendment 937/33, subject to conditions (which did not relate to the Subject Land) by Ministerial Statement 368, dated 11 October 1994: ‘Statement That A Proposal May Be Implemented (pursuant to the provisions of the Environmental Protection Act 1986)’. The structure planning for the Baldivis area was progressed by the City, which adopted the South Baldivis District Structure Plan (the SBDSP) in 2001. The Subject Land was located within Precinct 4 of the SBDSP (constituting approximately 70% of Precinct 4) and planned for a predominant zoning of ‘Urban’ for an ultimate planned population of 4,290 people. The Subject Land was zoned ‘Development’ in the City’s Town Planning Scheme No 2 (the TPS2), as entered into the (State) Government Gazette on 19 November 2004. Clause 4.2.4 of the TPS2 required a local structure plan to be prepared to support the development or subdivision of any land within the Development zone. Planning consultants for the applicants lodged a draft proposed Local Structure Plan (the LSP) with the City on 18 March 2010, setting out a proposed design for 870 residential lots. In April 2010, the planning consultants also lodged with the West Australian Planning Commission (the WAPC) a request (with supporting information) for the lifting of the Urban Deferment zoning to Urban zoning.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As the applicants note, on 29 March 2019, the Minister decided under s 75 and s 87 of the EPBC Act that the Proposed Action was a ‘controlled action’ under the EPBC Act and that the Proposed Action would require assessment and approval under that Act before it could proceed (the Controlled Action Decision). The Minister further notified that the Proposed Action would need to be assessed by preliminary documentation. The applicants are aggrieved by the Minster’s decision. They commenced this proceeding for judicial review in respect of the decision under s 5 and s 6 of the ADJR Act. The applicants say, in particular, they are aggrieved by:(a)the Minister’s delegate’s Deemed Referral Decision (referred to below);(b)the Minister’s delegate’s Controlled Action Decision; and (c)the Minister’s delegate’s conduct in deciding to proceed with an assessment of the Proposed Action purportedly under the EPBC Act. The first ground of review is that the Minister did not have jurisdiction to make the decision (in that the Proposed Action is not a controlled action under the EPBC Act). The second ground is that the decision involved an error of law (in that it was not a controlled action as it is exempt under the EPBC Act). These reasons only deal with the first ground. There are further matters in relation to the proposal to conduct an assessment. Again, these matters are not dealt with in these reasons, finalised on an urgent basis. In addition to the ADJR Act grounds, there is an application pursuant to s 39B of the Judiciary Act for a writ of prohibition against the Minister to take no further action or steps in respect of the Minister’s proposed assessment of the Proposed Action. The grounds in support of the writ are the same as those relied upon under the ADJR Act. Accordingly, it is sufficient to consider only the jurisdiction ground under the ADJR Act. There are some matters of background which are desirable to flesh out. I adopt the substance of the applicants’ recitation of facts for present purposes to give context to these reasons, but the facts have not at this stage been formally proved. By the same token, it does not appear that any issue is taken with the applicants’ account of the facts by the Minister, certainly for present purposes. Although the direct involvement of the Minister does not occur until May 2017 in this account. The applicants’ background to the Proposed Action The Subject Land was rezoned ‘Urban Deferred’ pursuant to MRS Amendment 937/33 (South West Corridor Stage B) to the Metropolitan Region Scheme, which amendment became effective on 10 December 1994. Its purpose was to give effect to the proposals in the South West Corridor Structure Plan within the City of Rockingham. At the same time, and as part of the process of MRS Amendment 937/33, the Environmental Protection Authority for the State of Western Australia (the EPA) set a level of ‘Public Environmental Review’ (Assessment Number 838) for certain aspects of proposed MRS Amendment 937/33 and produced EPA Bulletin 746 dated July 1994. The other land use changes proposed by the proposed MRS Amendment 937/33 (including the proposed Urban Deferred zoning for the Subject Land) were to be considered by the EPA at the level of ‘informal review with public advice’.

Ratio Decidendi

Legal Principle Established

The Minister argues that s 75(1) of the EPBC Act provides that it is ‘the Minister’ who ‘must decide … whether the action that is the subject of a proposal referred to the Minister is a controlled action’ and ‘which provisions of Pt 3 (if any) are the controlling provisions for the action’. The Minister decided, as part of the Controlled Action Decision that s 18 and s 18A of the EPBC Act are the controlling provisions for the Proposed Action. Section 18A(1) and s 18A(2) are offence provisions that come to apply where a person takes an action that results, or will result, or is likely to result, in a significant impact on (relevantly) a listed threatened species. The need for the Minister to form a view about whether s 18 and s 18A are controlling provisions when making a decision under s 75(1) will involve some determination of the likelihood of significant impact arising from the Proposed Action. However, the Minister argues, that does not make likelihood of ‘significant impact’ a jurisdictional fact for this Court to decide when reviewing a decision under s 75(1) of the EPBC Act. It is a question reserved for the Minister. CONSIDERATION In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527, the Full Court (Bromberg, Katzmann and O’Callaghan JJ) recently summarised the principles concerning to jurisdictional facts (at [98]-[102]):98A jurisdictional fact is a condition precedent to the exercise of jurisdiction or a criterion the satisfaction of which enlivens a statutory power or discretion; unless the condition is fulfilled or the criterion satisfied, a decision purportedly made in the exercise of the jurisdiction or the power or discretion conferred by the relevant statute will have been made without authority: R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 (R v Connell) at 429-430; Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at [43]. A decision will be tainted by jurisdictional error if the Court finds that there was no such fact at the time the decision was made: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 (Timbarra) at [37].99If the exercise of power is expressly conditioned on the formation of an opinion or belief by the decision-maker, however, the existence of the requisite opinion or belief is a jurisdictional fact: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57] (French CJ). This principle is not restricted to the exercise of powers as distinct from duties. Section 65(1) of the Migration Act 1958 (Cth), for example, imposes an obligation on the responsible Minister to grant a visa the subject of a valid application if he or she is satisfied of a number of matters, and an obligation to refuse to grant it if not so satisfied. The satisfaction of the Minister is a condition precedent to the discharge of the obligation and a jurisdictional fact, reviewable under s 75(v) of the Constitution of the Commonwealth (the Constitution): Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [131] (Gummow J); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12.100Not all conditions precedent or criteria for the exercise of a statutory power or discretion are jurisdictional facts. That depends on whether, as a matter of statutory construction, Parliament intended that the question of satisfaction of the conditions or criteria be left to the administrative decision-maker or, in the final instance, to a court on judicial review: Public Service Association and Professional Offıcers’ Association Amalgamated Union (NSW) v New South Wales (2014) 242 IR 338 at [75] (Basten JA); Australian Commercial Catering Pty Ltd v Fair Work Commission (2015) 235 FCR 441 (ACC v FWC) (Tracey, Barker and Katzmann JJ) at [42].101Where the exercise of statutory construction leads to the conclusion that Parliament intended that the relevant criterion can only be met if the relevant fact or facts objectively exist, “the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts”: Timbarra at [40] (Spigelman CJ, Mason P and Meagher JA agreeing at [123] and [124] respectively).102In ACC v FWC the Full Court addressed the exercise of statutory construction at [43]-[44]:43To properly construe the statute, it is necessary to examine both the language in which the relevant provision is cast and “the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional”: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [6] (Spigelman CJ) …44His Honour also observed (at [89]) that where the criterion is a matter upon which reasonable minds may differ it is less likely that Parliament intended the criterion to be an objective fact. Similarly, in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57] French CJ said that “[w]hen a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court”.