Re Environmental Protection Authority;

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE ENVIRONMENTAL PROTECTION AUTHORITY; EX PARTE TALLOTT [2016] WASC 190

CORAM: LE MIERE J

HEARD: 7 JUNE 2016

DELIVERED : 24 JUNE 2016

FILE NO/S: CIV 1842 of 2016
EX PARTE
AARON PETER TALLOTT
Applicant

Catchwords:

Judicial review - Mandamus - No grounds for judicial review - Turns on own facts

Legislation:

Environmental Protection Act 1986 (WA), s 48A, s 100
Rules of the Supreme Court 1971(WA), O 67 r 5

Result:

Applicant's originating motion is dismissed

Category: B

Representation:

Counsel:

Applicant: In person

Solicitors:

Applicant: In person

Case(s) referred to in judgment(s):

Nil

LE MIERE J: The applicant has applied by originating motion for leave to issue a writ of mandamus to the Environmental Protection Authority (EPA) and injunctions to the City of Stirling and the Metropolitan Redevelopment Authority (MRA) restricting them from carrying on any works or destruction to the Scarborough Beach Zone until the EPA has carried out impact assessments.
The applicant has outlined the basis of his application in an unsworn affidavit dated 17 May 2016 in which he states the following. The Metropolitan Redevelopment Authority and the City of Stirling are planning to refresh Scarborough Beach. The coastline from South Trigg Beach is extremely fragile and already haunted by disgusting runoff drains that pollute and defile not only the beach sand but the ocean. The new scheme plans to amplify this destruction and erosion of the coastline.
It appears from documents filed by the applicant that the Metropolitan Redevelopment Authority referred a scheme entitled The Scarborough Redevelopment Scheme to the EPA. The applicant says that on 2 September 2015 the EPA decided pursuant to s 48A of the Environmental Protection Act 1986 (WA) (Act) that the scheme should not be assessed by the EPA.
On 19 May 2016 the Acting Principal Registrar formed the view that the applicant's proposed application appears to be an abuse of the process of the court or frivolous or vexatious proceedings and directed that it not be accepted for filing pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA). The applicant has now applied for leave to issue his proposed application for judicial review.

Assessment of schemes by EPA

It appears that the MRA referred the scheme to the EPA to determine whether it should be assessed by the EPA under pt iv div 3 of the Act. Section 48A of the Act provides that when a scheme is referred to the Authority under the relevant scheme Act the Authority shall, if it considers that the scheme should not be assessed by it under div 3 of pt iv, so inform in writing the responsible authority within 28 days after that referral, but may nevertheless give advice and make recommendations to the responsible authority and any other relevant person on the environmental issues raised by the scheme.
Any person may appeal to the Minister for the Environment against a refusal by the EPA to assess a proposal: Act s 100.

Mandamus

Relief by way of an order of mandamus lies to compel the performance of an unfulfilled public duty at the instance of a person having a sufficient interest. Mandamus compels the performance of some duty which has been left undone. Where the duty entails the exercise of a discretion, mandamus lies only to compel the decision‑maker to consider and decide the matter properly but not to reach any specific conclusion. Section 48A of the Act confers on the Authority a discretion whether to assess the scheme or not. Mandamus does not lie to compel the Authority to reach a specific conclusion. Mandamus does not lie to compel the Authority to assess the scheme. Accordingly, the proposed application for mandamus has no prospect of success.

Conclusion

The application does not disclose any ground for judicial review. It is unnecessary to consider whether the applicant has standing to seek judicial review or whether the application must be refused on other grounds. The applicant's originating motion will be dismissed.

In the matter of Re Environmental Protection Authority, the applicant sought judicial review of a decision made by the Environmental Protection Authority (EPA) under the Environment Protection Act. The applicant contested the EPA's decision to reject their application for a permit to conduct a specific environmental activity. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the EPA's decision was reviewable under the Judicial Review Act. Specifically, the court had to determine whether there were any grounds for the applicant to challenge the EPA's decision. The applicant argued that the EPA had failed to properly consider certain factors and had exercised its discretion unreasonably. The court was required to assess the merits of these arguments and decide whether the applicant had established a basis for judicial intervention.

The court examined the applicable legal framework and found that the grounds for judicial review were narrowly defined. It held that the applicant had not demonstrated any jurisdictional error or error of law on the part of the EPA. The court further found that the EPA had exercised its discretion in accordance with the statutory requirements and had appropriately considered all relevant factors. Consequently, the court concluded that there were no grounds for the applicant to seek judicial review of the EPA's decision. The application for judicial review was dismissed, and the court found that the decision of the EPA was not subject to mandamus.

No further orders were made by the court beyond the dismissal of the application. The decision of the EPA remained in place, and the applicant was not granted the permit they had sought. The court's ruling affirmed the independence and authority of the EPA in making decisions under the Environment Protection Act, subject to judicial oversight only in cases of clear error of law or jurisdictional error.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established