Re Environmental Protection Authority;

[2016] WASC 190

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

1. 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.

2. 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.

3. 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.

4. 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

1. 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.

2. Any person may appeal to the Minister for the Environment against a refusal by the EPA to assess a proposal: Act s 100.

Mandamus

1. 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

1. 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.