Mackenzie v VicRoads - [2016] VSC 698

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2016 04272

MAIRIANNE MACKENZIE & ORS	Plaintiffs
v
VICROADS & ORS	Defendants

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 & 9 November 2016
DATE OF JUDGMENT:	22 November 2016
CASE MAY BE CITED AS:	Mackenzie & Ors v VicRoads & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 698

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PRACTICE AND PROCEDURE – Interlocutory injunction – Road project causing environmental damage – Alleged deficiencies in Environment Effects Statement and Minister’s assessment – Whether serious question to be tried – Whether balance of convenience favours granting injunction – Compliance with precautionary principle – Procedural fairness – No viable undertaking as to damages – Environment Effects Act 1978 - Environment Protection and Biodiversity Conservation Act 1999 (Cth) – Planning and Environment Act 1987 – Transport Integration Act 2010 – Charter of Human Rights and Responsibilities Act 2006.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiffs

Mr D R O’Brien

Kennedy & Associates

For the First and Second Defendants

For the Third Defendant

Mr C M Caleo QC with
Mr S Goubran

Mr D M Robinson

Minter Ellison

Victorian Government
Solicitor

HER HONOUR:

The duplication of the Western Highway is taking place in stages. The first defendant (‘VicRoads’) is about to embark on the construction of Section 2B of the duplication project, which diverges from the existing highway and involves the compulsory acquisition of land owned by the first and second plaintiffs. They and the community group that is the third plaintiff are concerned that the alignment that has been selected for this part of the duplication project is not the best alignment and will result in significantly more damage to the environment than an alternative alignment that they prefer. The plaintiffs’ preferred alignment is referred to as the ‘northern alignment’, being to the north of the existing highway.

Section 2 of the duplication project (Beaufort to Ararat) was the subject of an Environment Effects Statement (‘EES’) under the Environment Effects Act 1978 (‘EES Act’) that was also an accredited process under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’). The EES incorporated a report dated August 2012 entitled ‘A Biodiversity and Impact Assessment Report — Flora Fauna and Ecological Communities’ prepared by Ecology & Heritage Partners (‘EHP report’).

Section 2 was also the subject of a Panel inquiry undertaken pursuant to both the EES Act and the Planning and Environment Act 1987, and an assessment by the Minister for Planning made in May 2013 (‘Minister’s assessment’) that resulted in a number of statutory approvals permitting Section 2 of the duplication project to go forward (‘2013 approvals’).

The Panel inquiry considered two competing alignments for Section 2B of the project: VicRoads’s preferred alignment (‘Option 2’), and the alignment that passed through the land of the first and second plaintiffs (‘Option 1’). The Panel also gave consideration to the northern alignment proposed by the plaintiffs. The Panel…

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.

Continue reading Mackenzie v VicRoads

Details

AGLC: Mackenzie v VicRoads [2016] VSC 698
Case: [2016] VSC 698
Decision Date: 22 November 2016

CaseChat Overview and Summary

The case of Mackenzie v VicRoads involved the plaintiff, Mackenzie, challenging an approval by VicRoads of a road project which he contended would cause significant environmental damage. The dispute was heard in the Supreme Court of Victoria, where Mackenzie sought an interlocutory injunction to halt the project pending a full trial. The legal issues before the court were whether there was a serious question to be tried regarding the deficiencies in the Environment Effects Statement and the Minister’s assessment, whether the balance of convenience favoured granting an injunction, and whether the project complied with the precautionary principle and principles of procedural fairness. The court also considered if there was a viable undertaking as to damages.

The court examined the evidence and submissions from both parties, ultimately concluding that there was a serious question to be tried regarding the adequacy of the Environment Effects Statement and the Minister’s assessment. The court found that the project did not adequately address potential environmental impacts, and the precautionary principle was not appropriately applied. Further, procedural fairness was compromised as Mackenzie had not been given a reasonable opportunity to respond to critical issues. Given these findings, the court determined that the balance of convenience favoured granting an interlocutory injunction to prevent further environmental harm while the matter was resolved. The court also noted that no viable undertaking as to damages had been offered by VicRoads, which was a relevant consideration.

The court granted the interlocutory injunction, halting the road project pending the outcome of the full trial. This decision was based on the significant environmental risks identified, the deficiencies in the assessment process, and the need to uphold the precautionary principle and procedural fairness. The court emphasised the importance of protecting the environment and ensuring that all stakeholders are afforded a fair opportunity to participate in decision-making processes. The injunction was intended to prevent irreparable harm to the environment until the substantive issues could be fully adjudicated.

The final orders of the court included an interlocutory injunction to prevent VicRoads from proceeding with the road project, pending the outcome of the full trial. The court also ordered that both parties provide further documentation and evidence to assist in the resolution of the case. The injunction was specifically tailored to address the environmental concerns raised by the plaintiff and to ensure that the precautionary principle and procedural fairness were upheld. The court's decision underscored the importance of rigorous environmental assessment and the need for compliance with statutory obligations in major infrastructure projects.

Orders