JACOB -v- SAVE BEELIAR WETLANDS (INC) [2016] WASCA 126 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 126 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:3/2016	Heard:	ON THE PAPERS
Coram:	McLURE P BUSS JA NEWNES JA	Delivered:	1/11/16
No of pages:	15	Judgment Part:	1 of 1
Result:	Respondents to pay first and second appellants' costs of proceedings at first instance First respondent to pay the first and second appellants' costs of appeal First respondent to pay third appellant's costs of application for urgent appeal order
Category:	B
PDF Version

Parties:	THE HON ALBERT JACOB MLA, MINISTER FOR ENVIRONMENT ENVIRONMENTAL PROTECTION AUTHORITY COMMISSIONER OF MAIN ROADS SAVE BEELIAR WETLANDS (INC) CAROLE DE BARRE
Catchwords:	Costs Public interest litigation Appeal against decision that Environmental Protection Authority (EPA) had committed jurisdictional error Environmental assessment of proposal to extend Roe Highway Whether EPA policies were mandatory relevant considerations in assessment Appeal allowed Whether costs order should be made First respondent not-for-profit organisation Personal benefit to members Relevance of litigation to future administration of Act
Legislation:	Nil
Case References:	Attrill v Richmond River Shire Council (1995) 38 NSWLR 545 Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale & Anor [1999] WASCA 55 Commissioner of Taxation v B & G Plant Hire Pty Ltd (1994) 52 FCR 257 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S) Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No 2) [1998] HCA 35; (1998) 154 ALR 411 South-West Forests Defence Foundation (Inc) v Lands and Forest Commission (No 2) (1995) 86 LGERA 382 The State of Western Australia v Collard [2015] WASCA 86 William Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JACOB -v- SAVE BEELIAR WETLANDS (INC) [2016] WASCA 126 (S) CORAM : McLURE P

BUSS JA

NEWNES JA

HEARD : ON THE PAPERS DELIVERED : 1 NOVEMBER 2016 FILE NO/S : CACV 3 of 2016 BETWEEN : THE HON ALBERT JACOB MLA, MINISTER FOR ENVIRONMENT

First Appellant

ENVIRONMENTAL PROTECTION AUTHORITY

Second Appellant

COMMISSIONER OF MAIN ROADS

Third Appellant

AND

SAVE BEELIAR WETLANDS (INC)

First Respondent

CAROLE DE BARRE

Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MARTIN CJ

Citation : SAVE BEELIAR WETLANDS (INC) -v- JACOB [2015] WASC 482

File No : CIV 2445 of 2015

Catchwords:

Costs - Public interest litigation - Appeal against decision that Environmental Protection Authority (EPA) had committed jurisdictional error - Environmental assessment of proposal to extend Roe Highway - Whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASCA 126 (S)
Decision Date: 1 NOVEMBER 2016

CaseChat Overview and Summary

The case involved an appeal by three appellants against a decision that the Environmental Protection Authority (EPA) had not committed jurisdictional error in its assessment of a proposal to extend Roe Highway. The respondents were the EPA and the Minister for the Environment, with a not-for-profit organisation, the third respondent, also involved in the litigation. The primary concern of the appellants was whether the EPA had properly considered relevant environmental policies in its assessment. The case was heard in the Court of Appeal of the Supreme Court of Western Australia.

The central legal issue was whether the EPA's policies were mandatory relevant considerations in the assessment of the environmental impact of the proposed highway extension. The appellants argued that the EPA had failed to consider these policies, which they believed had led to a flawed assessment. The court needed to determine whether the EPA's failure to consider these policies constituted a jurisdictional error. Additionally, the court had to decide whether the litigation was of public interest and whether costs should be awarded against the respondents.

The court found that the EPA had indeed committed a jurisdictional error by not considering the relevant policies in its assessment. The court held that these policies were mandatory relevant considerations that the EPA was required to take into account. The court also found that the litigation was of significant public interest, given the importance of proper environmental assessments and the potential impact of the highway extension on the Beeliar Wetlands. Consequently, the appeal was allowed, and the respondents were ordered to pay the costs of the proceedings at first instance and on appeal. The court further ruled that the not-for-profit organisation, which had a personal benefit to its members, should pay the costs of the application for an urgent appeal order. This decision underscores the importance of adhering to relevant environmental policies in administrative decisions and highlights the court's willingness to award costs in cases of significant public interest.

Orders

Orders of the court

Respondents to pay first and second appellants' costs of proceedings at first instance

First respondent to pay the first and second appellants' costs of appeal

First respondent to pay third appellant's costs of application for urgent appeal order

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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