Paterson v Minister for the Environment and Heritage
[2004] FMCA 924
•26 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATERSON v MINISTER FOR THE ENVIRONMENT AND HERITAGE & ANOR | [2004] FMCA 924 |
| ADMINISTRATIVE LAW – Objection to Competency – standing under s.5 ADJR Act and s.487 EPBC Act – whether Applicant is an “aggrieved person” – whether decision to build power line in that area is a “controlled action” under s.75 of the EPBC Act – a decision to review will not redress or alleviate applicant’s complaint – objections to competency upheld. |
Environmental Protection and Biodiversity Conservation Act 1999 (Cth), ss.75, 487
Administrative Decisions (Judicial Review) Act1977, s.5
Tooheys LTD v Minister for Business and Consumer Affairs (1981) 36 ALR 64
Humane Society International Inc v Minister for Environment and Heritage (2003) 126 FCR 205
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 1
Alphapharm Pty Ltd v SmithKline Beecham (Aust) Pty Ltd (1994) 49 FCR 250
Transuburban City Link v Allan (1999) 95 FCR 553; Australia Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Onus v ALCOA of Australia Ltd (1981) 149 CLR 27
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1948) 194 CLR 247
Robinson v Western Australian Museum (1977) 16 ALJR 623
| Applicant: | SUSAN PATERSON |
| First Respondent: | MINISTER FOR THE ENVIRONMENT AND HERITAGE |
| Second Respondent: | QUEENSLAND ELECTRICITY TRANSMISSION CORPORATION LIMITED (TRADING AS POWERLINK) |
| File No: | BZ111 of 2004 |
| Delivered on: | 26 November 2004 |
| Delivered at: | Brisbane |
| Hearing Date: | 30 April 2004 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Skennar |
| Solicitors for the Applicant: | Alroe & Associates |
| Counsel for the First Respondent: | Mr Swan |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | Mr Hinson QC, with him Mr McLeod |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
That the application filed on 4 March 2004 be dismissed.
That any application for costs be filed and served within 14 days.
That any response to an application to costs be filed and served within 14 days thereafter.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ111 of 2001
| SUSAN PATERSON |
Applicant
And
| MINISTER FOR THE ENVIRONMENT AND HERITAGE |
First Respondent
And
| QUEENSLAND ELECTRICTY TRANSMISSION CORPORATION LTD (trading as ‘POWERLINK’) |
Second Respondent
REASONS FOR JUDGMENT
Powerlink Queensland is constructing a 94 kilometre 330 kilovolt transmission line from Millmerran to Middle Ridge, Queensland. The line traverses a grazing property owned by Susan Paterson known as “Yarrawonga”.
The Minister made a decision on 8 August 2003, under s.75 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (“the EPBC Act”), that a proposal to construct and operate the line was not a “controlled action”.
A later decision of the Minister not to revoke this decision of 8 December 2003, and made pursuant to s.78 of the EPBC Act, is the subject of Ms Paterson’s Application for Review filed 4 March 2004.
The Minister and Powerlink object to the competency of the Application for Review on the grounds that the Applicant is not “an aggrieved person” pursuant to s.5 of the Administrative Decisions (Judicial Review) Act1977 (“the ADJR Act”) on the expanded definition of a “person aggrieved by the decision” pursuant to s.487(2) of the EPBC Act.
I was persuaded at an earlier directions hearing, and with a view to saving costs to the parties associated with a full trial, that I should deal with the contentions about the Applicant’s standing as a discrete preliminary issue. In so doing I was mindful that the “question whether an applicant is a person aggrieved is one of mixed law and fact” (see Tooheys LTD v Minister for Business and Consumer Affairs (1981)
36 ALR 64), which is often best determined at a final hearing.
Background
The construction of this major transmission line could have environmental consequences. As a result, the proposed action was referred to the Minister to decide whether it was “a controlled action” within the meaning of the EPBC Act. As a result of the referral, the Minister must consider comments received pursuant to the invitation to make comments (s.74(3)).
Powerlink, the Applicant and others provided comments. At least a significant issue raised was the existence of an endangered listed ecological community along the proposed site of the line, and so far as the Applicant was concerned, upon her land.
The Applicant asserts that a community described as “Blue-grass dominate grasslands” and consisting particularly of a species known as “Queensland Blue-grass” exists on her property.
The effect of a decision that works are not “a controlled action” is that the works can proceed provided that it occurs in accordance with conditions imposed. The conditions imposed by the decision of
8 August 2003 include restrictions on permanent clearing; retention of seed and root stock and stripping and stockpiling of topsoil and “monitoring and management of regrowth in temporary cleared areas… until the grassland has been re-established to a similar pre-construction species composition”.
If the decision had been that the action was “a controlled action” then further investigations would have been undertaken as to the impact that the action has, or will have, or is likely to have on the relevant matter of national environmental significance (Part 8).
A helpful explanation of the statutory scheme under the EPBC Act is provided by Kiefel J in Humane Society International Inc v Minister for Environment and Heritage(2003) 126 FCR 205 at 208-211.
Is the applicant an Aggrieved Person under s.487 (2) of the EPBC Act?
Relevantly s.487(2)of the EPBC Act provides as follows:-
“ Extended standing for judicial review
(1)This section extends (and does not limit) the meaning of the term person aggrieved in the Administrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:
(a) a decision made under this Act or the regulations; or
(b) a failure to make a decision under this Act or the regulations; or
(c) conduct engaged in for the purpose of making a decision under this Act or the regulations.
(2)An individual is taken to be a person aggrieved by the decision, failure or conduct if:
(a) the individual is an Australian citizen or ordinarily resident in Australia or an external Territory; and
(b) at any time in the 2 years immediately before the decision, failure or conduct, the individual has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment.”
The Minister contends (and such submissions were adopted by Powerlink), that the Applicant does not meet the requirements of sub-section 2 (b). The submission is that:-
a)Although the EPBC Act does not define the phrase “engaged in a series of activities”, it was not Parliament’s intention that s.487 should result in “open standing”.
b)Mere comments on one proposal, as invited under s.74(3), whether as a member of the group “Power Down Under” or individually is insufficient as:-
(i)it does not constitute “a series of activities”, and
(ii)are more consistent with “mere personal opposition” to the proposed action and are not necessarily made “for the protection or conservation of the environment”.
In response, the Applicant says she has been involved in a “series of activities” and that the intention of the EPBC Act was effectively to confer standing on anyone who made submissions on a matter where public comment was invited.
The purpose, in my view, of s.487 is to offer a right to seek review on a matter involving national environmental significance, to an extended class of aggrieved persons. The careful way in which the qualifying criteria are set out in s.487(2), coupled with the objects at s.3(1)(a) and s.3(2)(d), mean a distinction is drawn between individuals with a long standing and demonstrated interest in environmental issues, and a person who holds a strong “one off” opposition or concern about a particular action. Because it is an extension of the rights given under the ADJR Act, s.487 should be construed more narrowly. Support for this view is found in the explanatory note which provides “there must be a genuine and consistent pattern of such activities for there to be ‘a series’ of activities”.
If the later person has an interest sufficient to satisfy the definition in s.5 of the ADJR Act then their remedy lies there, otherwise I am satisfied it was not intended by Parliament to “open up” the access to this remedy as widely as the Applicant suggests.
As the Full Court said in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 1:-
“Wide and liberal though the laws of standing should be, the Courts of this country have drawn the line of demarcation between an open system and the requirement of some form of interest in the subject matter of the proceeding other than a mere emotional attachment or intellectual pursuit or satisfaction”.
The Applicant joined a group in November 2002 called “Power Down Under” which she describes as a group of people with a “common interest” in relation to the construction of the line. The group has therefore been in existence for less that 2 years, and is devoted, it seems, to a single issue. Her own personal interest is as a landowner who claims her property is affected by the action.
She has not, in her material, satisfied me that she has been engaged in a series of activities for the protection of the environment.
I find she has no standing under s.487(2) of the EPBC Act.
Is the applicant an Aggrieved Person under s 5 of the ADJR Act?
Section 5 of the ADJR Act provides that:-
“a person who is aggrieved by a decision to which this Act applies…may apply…on an order for review…”
and by s.3 (4), a person aggrieved by a decision includes:-
“a person whose interests are adversely affected by a decision”.
These words have been the subject of much judicial interpretation however it is clear that the words:-
a)“Should not be given a narrow construction” (Tooheys Ltd v Minister for Business and Consumer Affairs Supra);
b)“The terms ‘affect’ and ‘interest’ are to be seen in the light of the scope and purpose of the particular statute in issue” (see Alphapharm Pty Ltd v SmithKline Beecham (Aust) Pty Ltd (1994) 49 FCR 250 by Gummow J at 272), and Gummow J in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (supra) at 269:-
“Section 5(1) of the ADJR Act operates in an ambulatory fashion over a wide area of federal law. Questions as to whether a particular applicant is ‘aggrieved’ within the meaning of that provision arise in the context provided by the ‘enactment’ under which the administrative ‘decision’ in issue was made. The nature of the grievance and the justifiability of the complaint by the applicant concerning it will appear first by identifying the decision giving rise to the grievance and then by considering the enactment under which it was made.”
Counsel for Powerlink particularly referred me to the remarks of the Full Court in Transuburban City Link v Allan (1999) 95 FCR 553 at 565 where the Court summarised the question of standing to review an administrative decision is:-
“to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases.”
Ms Skennar for the Applicant said that the Appeal decision of the High Court in Transurban “isn’t quite as wide as some of the comments that were made in the Full Court”. I do not agree, although the majority in the High Court did make it clear that one needs to analyse the decision, which was the subject of challenge, to see how that affects the interests.
The Applicant simply says that as the Bluegrass community is on her land, that means that the discussion affects her and that means that she is an aggrieved person.
I am not satisfied, on the evidence that the “Blue-Grass” community is on the Applicant’s land. Mr Hansen SC for Powerlink says that all she has is a belief based on a species identification of grass by an unnamed DPI scientist and a statement she read in material (later corrected as a mistake) by the Powerlink consultants.
Considering the interlocutory nature of these proceedings and the inability to test the evidence, I am not able to make a definitive finding at this time whether the endangered and listed blue-grass community does exist on the Applicant’s land. For the purposes solely of this preliminary issue, and in accordance with authority, I am prepared to be generous to the Applicant and assume that the community does exist on her land.
Counsel for Powerlink says that of the five grounds relied upon for the Application for Review, four grounds relate to Mrs Paterson’s participation in the processes leading up to the original decision on 8 August 2003. Although I know little of the group known as “Power Down Under”, her membership of such a group does not allow her to rely, as of a de facto representative, upon the adverse affects of other members of the group along the line.
Furthermore I agree that those grounds relate to the original decision of the Delegate made on 8 August 2003 not to declare the action as “a controlled action”. That decision is not the subject or review. The application only relates to the second decision made on 11 December 2003, where the Minister’s delegate refused to revoke the earlier decision, despite “new information” being offered by the Applicant and others.
The practical effect of the decision is to relieve Powerlink of any possible risk of contravening those sections of the EPBC Act which make its conduct potentially punishable if it doesn’t have authority to do them given by the Minister.
It is important to note that the original decision requires compliance with conditions imposed for the protection of the environment. The purpose of the Act is not to protect or prevent intrusion into every endangered community. It requires identification of concerns at the design phase and then the Minister, taking into account all significant impacts. The guidelines identify that:-
“Activities that will result in the permanent loss of areas greater than 20 hectares or 5 per cent of the patch of the listed community” constitutes a significant impact.”
The conditions upon which the activity has been approved to occur involve vegetation management measures being taken for both the listed community and those which are potentially within that category, but which will be further investigated in a field survey at that time.
Whilst I have no doubt that the Applicant strongly opposes the construction of the transmission line, I accept the submission of Powerlink that:-
“The decision under review is not one about whether or not the transmission line can traverse the applicant’s property. It is about the conditions under which the action of constructing the line can have an impact upon a listed ecological community that the EPBC Act is concerned to protect against significant adverse impact”.
The making of the decision under review means that the decision of 8 August 2003 continues to have operation and effect. Whether the original decision is revoked or not, no action by the Applicant will be required. If the decision reviewed and revoked, Powerlink’s project could be affected by further conditions being imposed on investigations being made.
In a sense, the argument of the Applicant is that a review of the decision (and hopefully a revocation) will create a benefit to her as a landowner. However, the Applicant has not identified:-
a) Any interest of hers which is adversely affected by the decision; or
b) How the decision under review affects her in a way which a favourable decision on the review application will redress or alleviate (see Australia Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 511 and 530; Onus v ALCOA of Australia Ltd (1981) 149 CLR 27 at 35-36; Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1948) 194 CLR 247).
Conclusion
Whilst the court has a discretion to determine the question of standing as a preliminary issue or with the merits of the case (see Robinson v Western Australian Museum (1977) 16 ALJR 623 at 814), caution has regularly been raised about doing so other than in clear cases where standing cannot be established.
The context of this matter, the nature of the discussion, and the objects and scope of the relevant legislation, coupled with the lack of identification of how this discussion adversely affects Mrs Paterson, have led me to the conclusion that she is not “an aggrieved person” within the meaning of s.5 of the ADJR Act.
Therefore I am bound to allow the objections as to competency filed by both the First Respondent (as to section 487 of the EPBC Act) and by the Second Respondent (as to s.5 of the ADJR Act).
The application for review must therefore be dismissed. I will order that any party seeking an order for costs shall file and serve written contentions within 14 days with any written contentions in reply to be filed and served within 14 days thereafter.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
0
9
0