Friends of Mallacoota v Minister of Planning and Minister for Environment and Climate Change

The Friends of Mallacoota brought proceedings in the Supreme Court of Victoria against the Minister of Planning and the Minister for Environment and Climate Change. The issue before the Court was whether the Minister's assessment under the Environment Effects Act 1978 (Vic) was valid, and whether the plaintiff was entitled to a further hearing. The case concerned the replacement of an ocean access ramp in Mallacoota, which required Ministerial permission and a planning permit under the Planning and Environment Act 1987 (Vic). The Coastal Management Act 1995 (Vic) invoked the Environment Effects Act 1978 (Vic) as the approvals required could have a significant effect on the environment. The Minister for Planning required an Environmental Effects Statement to be completed, which was completed and submissions were predominantly opposed to construction of a new ramp. A panel was appointed to conduct an inquiry and recommended rejecting the new ramp options. However, the Minister did not accept the panel’s principal recommendation and took a different view with respect to safety benefits and disbenefits.

The Court considered the legal issues before it, including whether the Minister’s assessment was an assessment within the meaning of the Environment Effects Act 1978 (Vic), whether the Minister took into account irrelevant considerations, and whether the plaintiff was entitled to a further hearing. The Court found that the statutory definition of ‘environment’ is a flexible concept that includes social effects including water safety. Therefore, the Minister did not take irrelevant considerations into account. The Court also found that the statutory scheme did not entitle the plaintiff to a further hearing, as the Minister’s assessment only informs and assists the ultimate statutory decision makers. The Court considered the consequences of the plaintiff’s interpretation of the statutory scheme and found that procedural fairness in the circumstances of the case was not compromised. However, if the validity of the assessment impugned, relief in the nature of certiorari was potentially available.

The Court dismissed the proceeding. The Court found that the Minister’s assessment was valid and that the plaintiff was not entitled to a further hearing. The Court held that the statutory scheme was clear and that the plaintiff’s interpretation of the scheme would have significant consequences for the decision-making process. The Court also found that the plaintiff did not have standing to challenge the Minister’s assessment, as the assessment only informs and assists the ultimate statutory decision makers. The Court held that if the validity of the assessment was impugned, relief in the nature of certiorari was potentially available. The Court did not make any orders for costs.