Mees v Kemp

Case [2004] FCA 366

FEDERAL COURT OF AUSTRALIA

Mees v Kemp [2004] FCA 366

ADMINISTRATIVE LAW – application for review of Minister’s decision that proposal by Victorian Government to construct, operate and maintain northern section of Mitcham-Frankston Freeway not a “controlled action” – application for review of purported decision of Minister not to reconsider first decision – application for extension of time under s 11(1)(c) of Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether Minister bound to take into account that, as a consequence of construction of northern section, “strong chance” Eastern Freeway-Greensborough link would be built and result in harm to environment – whether Minister made purported decision – whether “substantial new information” before Minister – whether Minister’s reasons for substantive decision satisfied requirements of s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether Court should extend time

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 11(1)(c) and 13
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3, 67, 75 and 78

Mees v Roads Corporation [2003] FCA 306 discussed
Humane Society International Inc v Minister for Environment and Heritage (2003) 126 FCR 205 at 208-211 referred to
Swain v Brinegar 542 F.2d 364 (1976) at 368-369 referred to
Indian Lookout Alliance v Volpe 345 F. Supp. 1167 (1972) at 1170 referred to
Indian Lookout Alliance v Volpe 484 F.2d 11 (1973) referred to
Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 referred to
Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 discussed
Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38 referred to
Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 541 referred to
Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1996) 65 FCR 25 at 35 referred to
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 referred to
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 followed
Soldatow v Australia Council (1991) 28 FCR 1 at 2 referred to
Brackenreg v Comcare Australia (1995) 56 FCR 335 referred to
Comcare Australia v Mathieson [2004] FCA 212 referred to
Preston v Secretary, Department of Family and Community Services [2004] FCA 300 referred to
Marsden v The Queen [2002] FCAFC 229 at [16] referred to
Minister for Immigration & Multicultural & Indigenous Affairs v Sochorova [2002] FCAFC 365 at [10] referred to
Parker v The Queen [2002] FCAFC 133 at [6]–[7] referred to
Goldie v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 121 FCR 383 at 393-4 referred to
Comcare v A’Hearn (1993) 45 FCR 441 followed
Westwood v Human Rights and Equal Opportunity Commission [2004] FCA 153 considered
Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 at [16] considered

PAUL ANDREW MEES v DAVID KEMP (in his capacity as Minister for the…

Continue reading Mees v Kemp

Sign in free to access the full text

Details
AGLC
Mees v Kemp [2004] FCA 366
Case
[2004] FCA 366
Decision Date

CaseChat Overview and Summary

The case of Mees v Kemp involves a challenge by Dr Mees against a decision made by the Minister for the Environment and Heritage, David Alastair Kemp, regarding the approval of the construction of the northern section of the Mitcham-Frankston Freeway under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Dr Mees argued that the Minister should have taken into account the potential environmental impacts of a possible Eastern Freeway-Greensborough link when deciding whether the freeway project involved controlled action. The Minister, however, maintained that the scope of his enquiry under section 75 of the EPBC Act was limited to the direct environmental impacts of the proposed action and did not extend to considering hypothetical future actions.

The central legal issue in this case was whether the Minister's assessment of whether the proposed action was a "controlled action" under section 75 of the EPBC Act should have included consideration of the potential environmental impacts of a future Eastern Freeway-Greensborough link. The court had to determine the appropriate scope of the enquiry mandated by section 75 and whether the Minister's decision was in accordance with the requirements of the EPBC Act.

The court, after reviewing the statutory scheme of the EPBC Act, relevant case law, and the legislative intent, found that the Minister's enquiry under section 75 should indeed be wide-ranging. The court held that the Minister was required to consider all adverse impacts that the proposed action was likely to have on protected matters, including cumulative and continuing effects. The court found that the Minister's decision did not meet the requirements of the Act because it failed to consider the broader environmental impacts of the freeway project, particularly in relation to the potential future link. Consequently, the court quashed the Minister's decision and ordered a re-evaluation of the proposed action in light of the broader environmental impacts.

In summary, the court ruled that the Minister's decision was flawed due to an inadequate scope of enquiry under section 75 of the EPBC Act. The decision was quashed, and the matter was remitted back to the Minister for reconsideration, ensuring that all potential significant environmental impacts, including cumulative and future related actions, are taken into account.

Orders

Orders of the court

1. The application for an order of review of the decision, made by the first respondent under s 75 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) on 21 March 2002, be dismissed.

2. The objection to competency, filed by the first respondent on 14 July 2003, be upheld.

3. The applicant and the first respondent each file and serve written contentions regarding the question of costs, on or before 23 April 2004.

4. As between the applicant and the second respondent, there be no order as to costs.

Background

Background to the litigation

The Minister accepts that the applicant is a person aggrieved for the purposes of ss 5(1) and 6(1) of the ADJR Act. However, he rejects the applicant’s contention that, when considering whether the proposal to construct the northern section of the Mitcham-Frankston Freeway involved “controlled action” under s 75(1), he was required to take into account the theoretical possibility that a Eastern Freeway-Greensborough link might be built.BACKGROUND Each decision relates to the approval sought by the Victorian Government under the EPBC Act to enable the “Mitcham-Frankston Freeway” (a freeway from the Eastern Freeway at Mitcham to Frankston), to be constructed. Most of the facts surrounding this matter are not in dispute. They are set out in the affidavits of the applicant sworn 30 June 2003, and Mr Gerard Early sworn 4 September 2003. In substance, what occurred was as follows. On 19 February 2002, the Victorian Government submitted to the Minister two referrals under s 68 of the EPBC Act. The first referral covered the segment of the Mitcham-Frankston Freeway from Ringwood to the Monash Freeway interchange in Dandenong North (“the northern referral”). The second referral covered the segment of the freeway from the Monash Freeway interchange in Dandenong North to the Frankston Freeway at Seaford (“the southern referral”). Attached to the referrals was a large body of supplementary information. It included an environmental effects statement that had been conducted in relation to the project in June 1998 under the Environment Effects Act 1978 (Vic), as required under Victorian planning law. In late February 2002, as part of the consultation process under the EPBC Act, the applicant made a submission in which he set out his belief that the Mitcham-Frankston Freeway comprised part of a larger “ring road”, and that it committed the Victorian Government to constructing a new freeway linking the Mitcham-Frankston Freeway with the Metropolitan ring road (“the Eastern Freeway-Greensborough link”). The applicant attached to his submission an affidavit sworn by Dr Michael Buxton, setting out the likely effects that such a new freeway link would have on threatened and migratory species in the nearby Bolin Bolin Billabong and the Banyule Flats. On 21 March 2002, the Minister made the substantive decision. He decided that the construction of that part of the Mitcham-Frankston Freeway dealt with in the northern referral was not “a controlled action” within the meaning of s 67 of the EPBC Act. A “controlled action” is an action that would be prohibited by a controlling provision if taken without approval under Pt 9. In other words, once a proposed action is found to be a “controlled action”, it is prohibited unless the various procedures for approval contained in the Act are followed. At the same time, he decided that the construction of that part of the freeway dealt with in the southern referral was “a controlled action”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WEINBERG J
There is also a helpful explanation by Kiefel J of the statutory scheme under the EPBC Act in Humane Society International Inc v Minister for Environment and Heritage (2003) 126 FCR 205 at 208-211.THE SUBSTANTIVE DECISION As noted earlier, the Minister made the substantive decision under s 75 on 21 March 2002. That decision was in the following terms:“COMMONWEALTH OF AUSTRALIAENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999DECISION THAT ACTION IN NOT A CONTROLLED ACTIONPursuant to section 75 of the Environment Protection and Biodiversity Conservation Act 1999, I, DAVID ALASTAIR KEMP, Minister for the Environment and Heritage, decide that the proposed action, set out in the Schedule, is not a controlled action.SCHEDULEThe proposed action by the Victorian Government to construct, operate and maintain the Scoresby Freeway from the interchange with the Eastern Freeway and Ringwood Bypass in Ringwood (City of Maroondah) to the interchange with the Monash Freeway in Dandenong North (City of Greater Dandenong), and as described in the referral received under the Act on 21 February 2002 (EPBC 2002/580).Dated this 21st day of March 2002(David Kemp)MINISTER FOR THE ENVIRONMENT AND HERITAGE” In making that decision, the Minister acted upon a minute from Mr Early, also dated 21 March 2002. In his affidavit, Mr Early deposed as follows:“6.On 21 March 2002, the Division prepared a minute to the Minister in relation to the Minister’s decision on whether the proposed action identified in the northern section referral was a controlled action (the northern section referral minute). I signed the northern section referral minute and caused it to be provided to the Minister. The northern section referral minute contained the following paragraphs relevant to the grounds of Dr Mees’ application in the current proceeding:“Many of the public submissions also argued that the Scoresby Freeway project would facilitate the future construction of a link between Greensborough (the present terminus of the Northern Ring Road) and the Eastern Freeway via Heidelberg, to complete the Melbourne Ring Road … and that this would adversely affect the important habitat areas.When deciding, under section 75 of the EPBC Act, whether a referred action is a controlled action, you are required to consider all adverse impacts that the referred action has, will have, or is likely to have on the matter protected by each provision of Part 3. In this context, it is not open to you to take into account the potential impacts of actions that might possibly be taken at some future time, and might in some way be related to, or facilitated by, the referred action – such as, in this case the hypothetical Greensborough-Eastern Freeway link. If the Victorian Government were at some future point to propose construction of such a link, that proposal would need to be separately referred and considered under the EPBC Act.” On 16 April 2002, the applicant wrote to the Minister on the letterhead of the Public Transport Users Association requesting reasons for his decision pursuant. The request was made pursuant to s 13 of the ADJR Act. The applicant said, inter alia:“I rely for my entitlement to make the request on s 487(2) of the EPBC Act, and refer you to the Affidavit material enclosed with my earlier letter for material on this question.”

Ratio Decidendi

Legal Principle Established

Established by: WEINBERG J

After referring to the decision of the New Zealand Court of Appeal in Environmental Defence Society, and also to various United States authorities, her Honour considered three Australian cases: Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38 per Cripps J; Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 541 per Sackville J; and Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1996) 65 FCR 25 at 35 per Davies J. Her Honour said at [31]:“These cases strongly suggest that the question whether there are likely to be significant effects upon the environment requires a wide consideration of the consequences which will follow if a proposed activity proceeds. The question for the Environment Minister under the EPBC Act is to the same effect. In considering whether an action is ‘controlled’ by a provision of Part 3 the Environment Minister is to determine whether the proposed action is likely to have a ‘significant impact’ on an area or species. One would think that when the EPBC Act was prepared it would have been known that an enquiry as to any likely significant effects of an action had been regarded by the courts as one requiring a full examination.” (emphasis added) Her Honour then rejected the Minister’s submission that the legislative precursor to the EPBC Act, namely the Environment Protection (Impact of Proposals) Act 1974 (Cth), applied in a different statutory context, and was therefore likely to have had a wider operation. She referred to the Explanatory Memorandum to the EPBC Act, noting its suggestion that the Act had been framed in such a way as to overcome a particular difficulty, namely that the former Act had been triggered by approvals made by the Government, or governmental authorities. She said at [34]:“…In my view, so far as concerns the question of the extent of the enquiry under s 75, little of consequence follows from the shift of focus under the EPBC Act to a person’s intended activity. The objects of the two statutes remain the same. In legislation of this kind the requirements of a provision such as s 75 fall to be determined by reference to the purposes and policy of the Act: Environment Agency v Express Car Co (Abertilley) Ltd [1999] 2 AC 22 at 31E and 1H, and there is nothing to suggest that the considerations relevant to the enquiry whether there are effects which are significant and likely to occur will be different.” Her Honour continued at [36]-[41]:“36. The Environment Minister submits that a wide approach, one which takes account of the actions of others, would impermissibly extend the liability of persons undertaking activities for offences under the EPBC Act. This contention did not form part of the Environment Minister’s reasons but is advanced now in support of the construction of the subsection which he adopted. I understand it to be submitted that if the significant impacts, which form the ultimate enquiry under s 75, extend to those caused by others the same meaning must be attributed to the prohibition provisions. It would follow, in the Environment Minister’s submission, that a person may be guilty of an offence for the decisions and actions of others and this could not have been intended.37. The Environment Minister’s submission assumes that a person has undertaken an action without referring the matter to the Minister, which is the very process under consideration. I accept that a person would be at risk of contravening the Act if they determined not to refer an action, save in the clearest possible cases. The legislation no doubt proceeds upon the assumption that persons will properly inform themselves as to the impacts their actions may have upon these aspects of the environment. Importantly, in my view, submissions for the Minister overlook the nature of the process engaged in when there is a referral to the Minister, as there was in the present case. It is one which will provide persons with protection from liability. If the Environment Minister considers that a proposed action will not have a significant impact upon an area or upon a species one might reasonably conclude that a proponent is safe from prosecution if they proceed. If the Environment Minister determines that it is a ‘controlled action’ assessments will be undertaken which will permit a decision as to whether to approve the action under Part 9. If it is not it will not proceed. If it is approved it is effectively exempt from the prohibitions. Rather than support a view of the enquiry under s 75 as narrow, this suggests a wider enquiry as necessary. 38. There are other indications in the EPBC Act which confirm that the enquiry undertaken by the Environment Minister is not a narrow one. The Environment Minister is to be provided with information and comment from Commonwealth and State Ministers having responsibilities which relate to the proposal. By this means information may be obtained about every effect a proposal might have. Consideration could be given to existing controls or regulations. The assessment to be undertaken of a proposed action may be very wide ranging. None of these indicate a focus narrowed to a direct and not an cumulative effect. The enquiry might extend properly to the ‘whole, cumulated and continuing effect’ of the activity of which Cripps J spoke in Kivi v New South Wales Forestry Commission. 39. The words used in s 75 and the process to be undertaken also support a wider enquiry than the Environment Minister undertook. In arriving at the ultimate conclusion, that an action is or is not a ‘controlled action’, one which is likely to have a significant impact on an area or species, the Environment Minister is first to consider ‘all adverse impacts’ the action is likely to have. This suggests that the widest possible consideration is to be given in the first place, limited only by considerations of the likelihood of it happening. By that means the Environment Minister will exclude from further consideration those possible impacts which lie in the realms of speculation. The Environment Minister would then determine whether they were significant. ‘Likely’ and ‘significant’ are sufficiently clear in their meaning. In any event there is no issue about their meaning in the present case.40. That the Environment Minister’s enquiry under s 75 is a wide one, is I consider, consistent with the high public policy apparent in the objects of the Act. No narrow approach should be taken to the interpretation of legislation having objects of this kind: Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at 515, 528, 537. 41. In my view the Environment Minister did not undertake the full enquiry required by s 75. The ground for review is made out. There will be declarations in terms of the orders sought in pars 1, 2 and 3 of the application.”